2004 Ct. Sup. 10060
No. CV98-0145500SConnecticut Superior Court, Judicial District of Waterbury at Waterbury
June 30, 2004
MEMORANDUM OF DECISION
GORMLEY, JUDGE TRIAL REFEREE.
The plaintiff, David Chianese, seeks damages against the named defendants for the negligence of their agent, Patricia Kilcullen, a nurse in administering a blood drawing for a cholesterol test which he claims caused a mixing of his blood with that of an earlier test participant and which caused him to fear contracting AIDS, Hepatitis A through G and Creutzfeldt-Jakob disease (more commonly known as mad cow disease) as well as an increased probability of contracting one of those diseases. His wife, Florence Chianese, has also claimed damages against both defendants on the same fact pattern for loss of consortium.
The plaintiff on October 21, 1997, was an electrical engineer and has been employed for the previous seventeen years by the Eaton Corporation. On that day his employer had scheduled a voluntary Wellness Fair which was conducted by the defendants at the company’s cafeteria. The plaintiff signed up for the program and had a 10:00 a.m. appointment. The fair consisted of several stations where individual tests were performed including one for a cholesterol screening. At the cholesterol screening station Nurse Kilcullen used a device known as a Penlet II to prick the finger of each patient in order to obtain blood for testing.
A Penlet was offered into evidence as Plaintiff’s Exhibit 3. It. is a plastic pen like device that breaks down into 2 parts; the body of the device into which you insert the lancet (needle) and the plastic cap. The cap has a hole in the end and after the Penlet body is armed with the lancet and joined with the cap, it is placed against the patient’s finger and that contact causes the needle to fire and puncture the patient’s finger. The cholesterol screening station was toward the end of the fair that each patient goes through.
The version of the events in question vary substantially between Mr. Chianese and Nurse Kilcullen. As with most cases the facts are paramount and this case is no exception. CT Page 10061
Mr. Chianese testified that he arrived on October 21, 1997 for the fair just before 10:00 a.m. He was evaluated at several other stations before approaching the cholesterol screening station. He was familiar with the Penlet II device because he had used it on himself periodically when testing for his diabetic condition. He immediately sat down next to Nurse Kilcullen. There was no line in front of him and the previous patient had already vacated the area before he sat down. In answer to a question posed by the court he admitted he had not observed Kilcullen administer the test to anyone before him.
Despite that, he alleges in his complaint, repeats in his trial testimony and earlier in providing a history to one of his physicians, Gregory K. Buller, M.D., stated Kilcullen had used the same lancet (needle) on several patients before him and after confronting her with that accusation, Kilcullen admitted it. (See Defendant’s Exhibit E and the note of 12/9/97.) There is simply no truth to that allegation.
Mr. Chianese believes he presented his left index finger for testing and Nurse Kilcullen caused the Penlet to inject his finger. He claims he felt wetness on contact and as she withdrew the Penlet from his finger he observed a crescent shaped red substance around the needle puncture, but as of that time he had not begun to bleed from the puncture. He claims that the substance was blood, but there was no evidence presented as to what the substance actually was. He admitted that in a part of his personnel file at Eaton the substance was described by him as dry, but he claims that is incorrect and he had the record changed.
He claims he asked Nurse Kilcullen to wipe the substance from his finger, but she refused. He testified that eventually he bled from the Penlet puncture and his blood mixed with the red substance on his finger. He had also noticed a red substance on the face of the Penlet cap. Curiously, he says he then grabbed Kilcullen’s hand, grabbed the Penlet and injected his right index finger to complete the test. He claims that he almost immediately thought there was a good possibility of his contracting some disease. He immediately complained of this occurrence and that day and the next day was seen by other medical staff at Danbury Hospital as well as his own physician, Dr. Levinson.
Patricia Kilcullen was called as a plaintiff’s witness. She is a registered nurse and described her training and experience which were impressive. She said she had prior knowledge and experience in the use of the Penlet II device with diabetic patients. She had not used the device before for cholesterol screening and in fact she had not participated before in a Wellness Fair. CT Page 10062
On the day before the fair, she stopped at the Danbury Hospital and was given two complete Penlet II devices which she brought with her to Eaton the next day. She was not given any specific instruction or warnings concerning their use. When shown Plaintiff’s Exhibit 12, a brochure concerning the use of the Penlet II, she said she had never seen it before. When she arrived at the clinic on October 21, 1997, the supervisor, Laurie Hart, gave her a large number of blue plastic vials containing lancets (needles) for insertion into the base of the Penlet. She testified that for each patient she injected prior to the plaintiff she used a new lancet and never used the same lancet on more than one patient. She used the same Penlet II device including the cap on each patient before the plaintiff and also used it on him. She had kept the other Penlet II device as a spare.
She testified specifically that she changed the lancet on the Penlet after her previous patient and before she injected the Plaintiff. In changing the lancet she obviously had to hold the Penlet, take it apart and put it back together before using it. She observed it in that process and saw nothing on the cap before using it on the plaintiff. After injecting the plaintiff and removing the Penlet cap from contact with the plaintiff’s finger she noted a square speck of red on his finger near the puncture wound. She also noted a similar looking speck on the face of the Penlet cap. As of this time none of the plaintiff’s blood had emerged from the puncture site. Contrary to the plaintiff’s testimony she claims she removed the red spot on the plaintiff’s finger with a cotton ball and then swabbed the plaintiff’s finger with a sterile wipe all before the plaintiff began to bleed. In fact she testified that it was her use of the sterile wipe that first caused the plaintiff’s finger to bleed. Before that time she had completely removed whatever substance that had been on his finger. She then either using the other Penlet or a different cap injected the plaintiff’s other index finger and completed the test and its analysis of the drawn blood. The court concludes that it was clearly Nurse Kilcullen and not the plaintiff who injected his other finger to complete the test.
Before discussing the complaint, the court wishes to discuss Plaintiff’s Exhibit 12, which appears to be the “Directions for Use” of the Penlet II ostensibly printed in October of 1990, which bears certain highlighted areas. Nurse Kilcullen testified that she had never seen it before. In fact there is no evidence of record that anyone previously saw it or used it. There was no evidence that either of the named defendants ever had possession of it, saw it, or had access to it. There is no evidence as to how it may have been disseminated or if it was disseminated. In substance there is simply no evidence to connect it to this case. It was simply agreed upon by the attorneys as an Exhibit with CT Page 10063 no testimony or stipulation of facts concerning it.
Despite that, the court will discuss its contents in the event that the court’s earlier conclusion of a lack of connection to this case is not sustained. The court will quote the “Caution” contained in a box in the upper section of Exhibit 12 in its entirety.
CAUTION: TO REDUCE THE CHANCE OF INFECTION:
NEVER SHARE A LANCET WITH ANOTHER PERSON
ALWAYS USE A NEW STERILE LANCET. LANCETS ARE FOR SINGLE USE ONLY.
IF THE PENLET IS BEING USED BY MORE THAN ONE PERSON, ALWAYS USE A NEW LANCET AND NEW LANCET CAP. (DISPOSABLE REPLACEMENT CAPS ARE AVAILABLE)
Thus it is absolutely clear that for each injection a new sterile lancet must be used. Lancets are for single use only. That same language is not used when referring to the cap. The manufacturer could simply have said that lancets and caps are for single use only but it didn’t. Instead it stated “when the Penlet is being used by more than one person, always use a new lancet and new Penlet cap.” This court concludes that the word “used” in that section refers to the person performing the blood drawing and not the person whose blood is being extracted. Therefore the court concludes that the warning does not support the proposition that a new Penlet cap must be used for each single use of the Penlet.
The court will now discuss the complaint in detail. All of the factual allegations concerning what took place on October 21, 1997 in each of the four counts of the complaint are the same. The first three paragraphs have been proven. As to paragraph 4 that is also proven with the exception of the words, “before which he waited behind several people undergoing that test.” There is no evidence that the plaintiff waited behind anyone before having his blood drawn. Paragraph 5 has been proven. As to paragraph 6, although the plaintiff testified that he saw a ring of blood on his finger when the Penlet was removed, it has not been proven that the substance was in fact blood.
As to paragraph 7, the court finds that the plaintiff has not proved those factual allegations. In that paragraph he alleges that Nurse Kilcullen failed to remove the blood ring when he requested and then his blood from the puncture wound mixed with the substance on his finger. The more persuasive evidence is absolutely to the contrary. The Court CT Page 10064 concludes that Kilcullen in fact wiped the finger clean before any blood of the plaintiff even appeared.
In paragraph 8 the plaintiff alleges that Kilcullen used the same lancet on him that she had used on earlier patients and therefore blood from one of them mixed with the plaintiff’s blood. There is absolutely no proof of that. Neither the plaintiff or anyone else had ever observed any such conduct and Nurse Kilcullen was adamant that she changed the lancet for each patient.
Those paragraphs described the factual predicate for the plaintiff’s claims of negligence contained in paragraph 9. Although the actual predicate may have changed during the trial the complaint was never amended. In “Plaintiff’s Proposed Finding of Facts” filed on June 11, 2004 on page two it states “At that moment Mr. Chianese noticed blood around and within the orifice through which the Penlet II needle protruded.” That alleged fact was never pleaded in the Revised Complaint of July 28, 1998. He then concludes that it is reasonable to conclude that some blood from one or more prior subjects was introduced by the tip of the Penlet II needle into the subcutaneous tissue of Mr. Chianese’s finger. That factual predicate for the commingling of the plaintiff’s blood with others has never been pled; what was pled was that the so called blood surrounding the needle puncture mixed with the plaintiff’s blood when he began to bleed. The defendants need only defend against the specific allegations of the complaint. The plaintiff has simply failed to prove them.
Paragraph 9a-f set forth the plaintiff’s specific claims of negligence. In paragraph 9a the plaintiff claims the defendant failed to properly train the nurse in the use of the Penlet II. The evidence supports the fact that prior to October 21, 1997, Nurse Kilcullen was familiar with and had used the Penlet in administrating to diabetes patients. There was no evidence that she wasn’t familiar with its use or needed instruction.
Paragraph 9b and c allege that Nurse Kilcullen failed to properly clean or inspect the Penlet II before she administered the test to the plaintiff. The evidence was that after each use of the Penlet she broke it down by removing the cap, inserted a new lancet and put the cap back on the body of the Penlet. In that process she obviously observed its component parts and she testified she did not observe anything on the cap before injecting the plaintiff. What may have been on the cap is subject to question. Kilcullen described it as a square red speck that could have come from other sources. Whatever it was and whether it was what left the red mark on the plaintiff’s finger is irrelevant because the court CT Page 10065 concludes that the substance was removed by Kilcullen before the plaintiff’s finger bled and therefore there was no contaminating or mixing of that substance with the plaintiff’s blood.
Paragraph 9d claims that Nurse Kilcullen failed to replace the lancet of the Penlet before administering the test to the plaintiff. There is absolutely no evidence to support that. In fact, the evidence clearly supports the opposite as the court has already found.
In paragraph 9e the plaintiff claims that the defendant failed to remove the Penlet from the plaintiff’s finger in a timely fashion to avoid the mixing of the plaintiff’s blood with that of prior test participants. There is no direct evidence as to what the substance was, but more importantly there is no credible evidence of mixing. In fact the court has found that there was no mixing.
As to paragraph 9f the plaintiff claims that the defendants failed to follow the prescribed practice and procedure for the safe use of the Penlet II. The plaintiff is presumably referring to the instructions contained in Plaintiff’s Exhibit 12. As has already been noted there is no evidence as to the dissemination of that set of instructions, or that any of these defendants or their agent, Nurse Kilcullen, was ever in receipt or possession of them. Lastly, the court concludes that Nurse Kilcullen’s use of the Penlet was consistent with those instructions.
The defendants urge the Court to adopt the “actual exposure” test in determining whether there is a legally compensable injury alleged and proven in this case. The plaintiff in its Objection to Trial Memorandum of Law submitted on behalf of Defendant filed on June 11, 2004 argues that defendants have offered no persuasive reason why the court should ignore the criteria set forth in Barrett v. Danbury Hospital, 232 Conn. 242
(1995). The “actual exposure” test would require the plaintiff to prove that he was exposed to blood which was actually infected with a disease causing agent. In citing Barrett the plaintiff states, “In Barrett
defendant’s summary judgment motion was granted because the plaintiffs in that action had failed to show any contact with blood whereby fear of contracting blood-born disease would have arisen.”
On the basis of what has been pled in this case the same can be said. The only claim in the pleadings is that a crescent shape blood like substance was left on the plaintiff’s finger when the Penlet cap was removed from his finger and when he began to bleed from that puncture his blood commingled with the substance left on his finger from the cap. The defense was that Kilcullen wiped the substance from the plaintiff’s finger before he began to bleed so there could have been no commingling CT Page 10066 and the Court has so found. Now the plaintiff seems to be arguing, almost in anticipation of the Court’s finding, that the commingling was caused by the injection itself, to wit that when the needle was triggered and passed through the hole in the cap that it must have picked up the substance on the cap and injected that into the plaintiff’s finger.
That fails for two reasons: 1) it simply has never been pled and the case was not defended on that basis and 2) even if it were pled in an Amended Complaint, it would fail because there is insufficient evidence to find that the substance in or on the cap was picked up by the needle and introduced into the subcutaneous tissue of Mr. Chianese’s finger.
For all of the reasons stated Judgment shall enter for the defendants as to all counts.
Gormley, JTR CT Page 10067