DALLAIRE v. HSU, No. CV 07-5004043 (May 18, 2010)

2010 Ct. Sup. 11958
No. CV 07-5004043Connecticut Superior Court Judicial District of New Britain at New Britain
May 18, 2010

MEMORANDUM OF DECISION
TANZER, J.

This medical malpractice action was commenced by the plaintiff, Denis Dallaire, Administrator of the Estate of Sandra Dallaire, against the defendant, Ven Hsu, MD. The plaintiff claims that on October 27, 2005, the defendant prescribed large doses of narcotic medications to Sandra Dallaire without a proper evaluation, that on that same date she took large dosages of narcotic medication prescribed by the defendant, and that as a result she died. The defendant denies those allegations and has specially plead that Sandra Dallaire was negligent in that she made misrepresentations to the defendant about her treatment history and narcotic usage and that she ingested narcotics at dosages which resulted in her own death. The plaintiff denies the special defense.

I have reviewed the transcripts, the exhibits, and have considered the credibility of the witnesses. I find the following facts. Sandra Dallaire had a congenital skeletal deformity called Madelung’s disease, resulting in many years of chronic severe pain to her neck, shoulders, arms and wrists, multiple fractures and surgeries. As a result of her medical condition, for at least six years prior to October 27, 2005, she was treated with a large number of different medications and therapies for pain, including narcotic medication for management of moderate to severe pain. From 2003 through June 27, 2005, she was a patient at the Comprehensive Pain Headache Treatment Centers, LLC (“Treatment Center”). During that time, while under the care of Dr. Karen Warner, Sandra Dallaire used opiate based medications such as oxycodone, methadone, morphine, fentanyl, and hydrocodone in combination and with other types of medications for anxiety, sleep problems and depression. Warner increased the dosages of oral narcotics to extraordinarily high dosages over a two-year period. Sandra Dallaire was not a compliant patient. She had a history of inconsistent pill counts and urine tests and a history of stockpiling and hoarding pills. She did not take her medications as prescribed.

In May of 2005, Sandra Dallaire fractured her right arm and shoulder CT Page 11959 and required surgery. Dr. Donald Wisch, her orthopedic surgeon, provided pain medication while she was hospitalized. Her medications on discharge on May 9 were Fentanyl, Oxycontin, Soma, Methadone, and Valium. No prescriptions were given to her at the time of discharge. On May 18, at a follow up appointment with Wisch, she reported her pain as under control. She also reported that she had medications through July 1, 2005. Wisch transferred her pain management to Dr. David Kloth, a physician with the Connecticut Pain Center, P.C., because she needed to be treated by a pain specialist.

After treatment at the Pain Center on June 27, 2005, and before seeing Kloth on July 20, 2005, Sandra Dallaire received prescriptions for Vicodin or hydrocodone and Valium from other doctors, including Drs. Estrella, Wisch, and Brook.

On July 20, 2005, Sandra Dallaire saw Kloth and told him that her final medications and doses prescribed by Warner at the Treatment Center were Oxycontin 80 mg qid, Methadone 80 mg qid, Duragesic 200 mcg q 72 hrs, Valium 10 mg qid and Soma qid. She told Kloth that her medications had been abruptly stopped, that she had had severe withdrawal and had been refused detoxification services. To the contrary, upon her discharge from the Treatment Center, she was provided with prescriptions for 30-days, with medications for withdrawal and a list of detox clinics. Kloth described her as a very difficult and complex case. He proposed a treatment plan of mainly methadone and intensive psychological counseling, and he noted that she would need to be off high doses of narcotics for at least six months in order to have a significant down regulation of her receptors before he would consider a trial of intrathecal narcotics. Kloth prescribed methadone 10 mg qid.

On September 15, 2005, Sandra Dallaire reported a pain level of 10+ out of 10 to Kloth. She also reported starting a new antidepressant. On September 29, she saw Wisch. Her pain was not under control. Wisch was to speak with Kloth. Wisch noted, “We need to get her pain under control.” As of October 13, Sandra Dallaire wanted to discuss her medications with Kloth as they were not helping her pain which remained 10+ out of 10. On October 13, Kloth continued to prescribe and Sandra refilled a prescription for methadone, 10 mg qid for 28 days.

Fourteen days later, on October 27, 2005, Sandra Dallaire saw the defendant. Denis Dallaire, her husband, had made the appointment for her for the purpose of finding something better than what she was getting, somewhere in between Warner and Kloth. Sandra Dallaire provided the defendant with pharmacy records of Warner’s prescriptions, but not those of Kloth, even though she had, that very day, obtained her complete CT Page 11960 prescription records, including Kloth’s, from Walgreen Pharmacy. The defendant interviewed Sandra Dallaire, took her history and physically examined her. He diagnosed that she suffered from Madelung’s disease and bilateral arm, neck and shoulder pain from post operative surgeries. He noted she was in narcotic pain control. He learned from the patient that her treatment with Warner’s office ended about 4 months earlier, that she had been referred by Kloth, that she was in transition, that her medications were fluctuating up and down and that she was without medications. The defendant told Sandra Dallaire that he would try alternate therapies and methadone, but before a second visit she had to obtain her records from Warner and Kloth. He reviewed the pharmacy records and her medication history under Warner. He did not know how much methadone or morphine she may have been taking since leaving Warner, but he understood that she was taking some medications that had been left over. On the intake page of his records he notes Soma 2 qid 8, methadone 40 mg 2# qid 8 and oxycontin 80 mg qid 4. He believed that she was addicted to oxycontin and that she was out of medication. He was concerned that if he did not prescribe medications to address her pain she would engage in unsafe drug-seeking behaviors. He considered this to be an emergency and urgent. The defendant prescribed the following medications and dosages: methadone, 40 mg. 4 pills/day, MS CONTIN 60 mg. 2/day, Xanax, 1 mg. 3/day. He significantly lowered the daily dosages of methadone and morphine she had received from Warner and did not prescribe Oxycodone which Warner had prescribed. The defendant would not have prescribed the same dosages to an opiate naive person, because they could be lethal. He ruled out that Sandra Dallaire was opiate naive. To the defendant, opiate naive refers to a patient who has never used opiates, whereas tolerance relates to a patient’s need for increased doses to achieve the same pain control because the receptors acclimate over time.

On October 27, 2005, at about noon, Sandra Dallaire filled the prescriptions she had obtained from the defendant at Walgreen Pharmacy. Inexplicably, the pharmacy filled both the morphine prescription and its refill on that day so that she obtained twice the amount of pills the defendant had prescribed. At about 7 pm, Sandra Dallaire was observed by Denis Dallaire to be in good spirits. Later in the evening, he observed her to be generally in bad shape. She was stumbling, slurring her speech, and nodding off. Denis Dallaire took the medications from her and put them in a safe. He did not do a pill count but checked to see that a bunch was not missing. In the safe there were a few other bottles with a few pills here and there. At approximately 1 a.m. on October 28, he found her non responsive and attempted CPR. A 911 call was placed. The EMTs arrived at 1:17 a.m. They were unable to revive Sandra Dallaire.

The EMT report lists Sandra Dallaire’s medications as methadone, Xanax CT Page 11961 and morphine. The dosages are not listed, and there is no pill count, although Denis Dallaire claimed that when the paramedics arrived he gave the safe and all the medications to the EMTs, who did a pill count and looked at dosages. He also claimed that he flushed all the pills down the toilet after his wife’s funeral.

At an autopsy performed at 10 a.m. on October 28, 2005, Sandra Dallaire’s cardiac blood contained methadone, 1.01 mg/L; morphine, 1.48 mg/L; oxycodone, 0.04 mg/L. Her vitreous humor contained morphine, 0.03 mg/L and oxycodone, 0.05 mg/L, Diazepan, nordiazepam, methadone, atropine/hyoscapine, morphine, oxycodone, alprazolam, caffeine and/or caffeine metabolites were also detected in her cardiac blood. The medical examiner listed the cause of death as opiate toxicity. At the time of her autopsy, the narcotics in her cardiac blood included morphine and methadone, medications which had been prescribed by the defendant. The cardiac blood also contained oxycodone and diazepam or valium, medications that had not been prescribed by him. According to the Walgreens records, Sandra had not had a prescription for oxycodone or valium for months prior to October 27, 2005. Denis Dallaire himself had prescriptions for Valium and Percocet, an oxycodone containing narcotic.

PLAINTIFF’S CLAIMS
The plaintiff contends that the standard of care required the defendant to obtain Sandra Dallaire’s records from Kloth or her pharmacy, or to speak with them, to determine her current medications and dosages before prescribing as he did. Otherwise, the standard of care required the defendant to initiate treatment for Sandra Dallaire with starting doses of methadone and morphine. The plaintiff claims that Sandra Dallaire was opiate naive to morphine and had a limited tolerance to methadone because Kloth had not prescribed morphine and had significantly reduced the amount of methadone she was taking. As a result, the doses of methadone and morphine prescribed by the defendant were lethal to Sandra Dallaire.

[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury . . . Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard. (Citations omitted; internal quotation marks omitted.)

Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254-55 (2002). CT Page 11962

THE EXPERTS
The defendant contends that neither of the plaintiff’s experts, Drs. George Adam and Daniel E. Buffington, possesses sufficient training and experience to provide expert testimony as to the prevailing professional standard for a physician practicing pain management. The plaintiff contends that the defendant’s expert, Dr. Mathew Kline, is not qualified to provide expert testimony on matters toxicological.

The defendant is trained and experienced in anesthesiology, acupuncture and pain management, and he has practiced in the specialty area of pain management since 1989. He is not board certified. General Statutes Sec. 52-148c[1] requires a plaintiff in a medical malpractice case to prove by a preponderance of the evidence that the defendant breached the prevailing professional standard of care, that care recognized as acceptable and appropriate by reasonably prudent similar health care providers. If the defendant holds himself out as a specialist, a similar health care provider is one who is trained, experienced and board certified in the same specialty. General Statutes § 52-184c(c). Any health care provider may testify as an expert if to the satisfaction of the court, he or she possesses sufficient training, experience and knowledge as a result of the active involvement in the practice or teaching in a related field of medicine within five years before the incident giving rise to the claim. General Statutes § 52-184c(d).

DANIEL E. BUFFINGTON, PharmD, MBA
Buffington holds a doctor of pharmacy degree. He took a residency and fellowship and he practices in the field of clinical pharmacology. His practice in clinical pharmacology involves working with patients who are on high risk medications. Since 1991, he has been on the faculty of the University of South Florida, the College of Medicine and Internal Medicine where he is clinical assistant professor of medicine in the Department of Internal Medicine, Division of Clinical Pharmacology. He provides continuing education for physicians, nurses, medical students and pharmacists. He serves as a toxicology consultant for medical examiners, focusing on medication levels. Based on his testimony and his curriculum vitae, I find that Buffington has sufficient training and experience in the related field of clinical pharmacology to qualify to testify in this matter. General Statutes § 52-184c(d). The objection to his testifying as to the standard of care for a physician prescribing and managing narcotic medications to a patient in chronic, severe pain goes to the weight given to the opinions.

CT Page 11963

GEORGE ADAM, M.D.
Adam is board certified in Psychiatry and Neurology. He treats chronic pain patients in his neurology practice and is familiar with and engages in the treatment of chronic pain patients through use of narcotics, including methadone and morphine. He is familiar with the standard of care for dosaging of methadone and morphine for chronic pain patients. He expressed opinions as to the standard of care, deviation from the standard of care and causation. I find him qualified to testify on standard of care issues; General Statutes § 52-184c(d); any objections go to the weight given to his opinions. I do not, however, find him to be qualified to testify on the issue of causation and any opinion on that subject will not be considered by me.

MATTHEW KLINE, M.D.
Kline is board certified in anesthesiology and pain management. He has expert understanding and knowledge through experience and practice of the use of pain medications and their pharmacology. He is qualified to render opinions as to the standard of care in treating and managing a patient with chronic severe pain and to render opinions as to causation. The plaintiff’s objection based on a lack of pharmacological or toxicological expertise goes to the weight given to the opinions.

THE EXPERT OPINIONS OPIATE NAIVE OR OPIATE TOLERANT?
The plaintiff correctly asserts that an important concept and point of dispute in this case is whether Sandra Dallaire was an “opiate naive” or an “opiate tolerant” patient when she saw the defendant on October 27, 2005. The experts were in dispute on this issue and were even in conflict as to the meaning of the terms “opiate naive” and “opiate tolerant.”

DR. ADAM
When asked, what is the difference between opiate-naive and opiate-tolerant patients, Adam responded, “Opiate-naive is someone who has not taken opiates, or has taken very low doses, and opiate-tolerant is someone whose dose to control symptoms has been escalating because the metabolism has learned to accommodate and handle the drug more inefficiently than before . . . An opiate-naive patient has not had opiates, or not much of them; and an opiate-tolerant patient is someone whose metabolism has learned to efficiently accommodate and detoxify the body from narcotics.” He opined, based on the records, that on October CT Page 11964 27, 2005, Sandra Dallaire was “somewhere in-between” an opiate naive and opiate tolerant patient. “I would say on the naive side.” “She was morphine naive.”

DR. BUFFINGTON
When asked the difference between an opiate naive and an opiate tolerant patient, Buffington responded, “A very important concept in pain management . . . an opiate naive is someone who is not acclimated to that product.” “An opiate tolerant person — and there’s no fine way to measure this, an opiate tolerant person is someone who’s had repeated chronic regular exposure. Their pain receptors are going to continue to require more exposure to greater quantity of drug to have the same relief effect.” Buffington opined when Sandra Dallaire saw the defendant, she would still be opiate tolerant to methadone — but at a much lower level and she would be opiate naive to morphine or a morphine based product.

DR. KLINE
Kline defined an opiate naive patient as “a person who has never been on a narcotic.” When asked whether Sandra Dallaire was opiate naive, Kline responded, “Absolutely not.” To him, an opiate naive patient is on no narcotic, no opioid analgesics whatsoever, whereas opiate tolerant patients are on some degree of narcotics and have some level of tolerance. As to Sandra Dallaire, when she saw the defendant, Kline stated, “Not only had she been on extraordinarily high dosages of opiates — at least through June 2005, but she also continued to take opiates while under the care of Kloth.” She was not opiate naive. She had significant opiate tolerance at the time of her visit with the defendant.

STANDARD OF CARE DR. ADAM
He testified that the defendant deviated from the standard of care for physicians prescribing pain medications by failing to obtain medical records and failing to conduct a thorough clinical and psychological evaluation to ensure the safety of the large doses of narcotic pain medication which he prescribed. Adam opined that the defendant should have phoned either the pharmacy or the previous provider to find out what the patient was taking. He testified the standard of care is a range and that he practices conservatively. In discussing whether Sandra Dallaire presented to the defendant as an emergency, it was his opinion that if pain is the main reason why the patient is seeking acute help, he wouldn’t CT Page 11965 necessarily want to hold treatments up, but wouldn’t feel comfortable going ahead and just treating the pain emergently in an outpatient setting. “I would send the patient to an emergency room if the pain was so severe.” Adam also testified that he would have given Sandra Dallaire starting doses, for example, “I start on 2.5 mg.”

DR. BUFFINGTON
Buffington opined that the defendant breached the standard of care when he prescribed as he did without first validating the patient’s current dosage level and daily patterns of use, given the lapse of time between her last appointment at the Treatment Center and her appointment with the defendant on October 27, 2005. The defendant reviewed only old prescription records as a foundation for his therapeutic and dosage decisions. The doses prescribed by the defendant of methadone, Xanax and morphine would not represent a safe or effective starting dose based on the limited data available and would be potentially lethal to a patient who has not had adequate time to adjust to such doses and blood levels. The defendant should have initiated treatment with starting doses for morphine in a single release tablet and methadone at 10 mg qid, and then titrated to pain relief.

DR. KLINE
Kline opined that the defendant did not deviate from the standard of care when he prescribed pain medication to Mrs. Dallaire without first obtaining her prior prescription records or contacting her physicians. The standard of care did not require the defendant to obtain the office records of Warner and Kloth or the current pharmacy records before prescribing to Mrs. Dallaire. The defendant satisfied the standard of care when he met with the patient, he examined the patient, spoke with the patient about her medications and reviewed records that indicated she had been on very large doses of multiple narcotics, including high doses of morphine, dragesic, oxycontin, and methadone. Sandra Dallaire was in an emergency situation, in chronic pain, had been on narcotics for treatment of severe chronic pain, had run out of medications and was in dire need of medication. The defendant made calculations after reviewing the dosages prescribed by Warner. He did not simply continue the regimen the patient had been on while under Warner’s care; rather he reduced the dosages of methadone and morphine and cut out the Oxycontin when previously large amounts had been provided. The standard of care did not require the defendant to prescribe starting doses or to use short acting agents given the patient’s history of having taken large doses of long-acting narcotics of the same class.

CT Page 11966

CAUSATION
The experts agree that the post-mortem levels of morphine and methadone, 1.48 mg/l for morphine and 1.01 mg/l for methadone, found in Sandra Dallaire’s cardiac blood at autopsy were lethal. They disagree, however, on whether the doses of morphine and methadone, if taken as prescribed by the defendant, are capable of rendering the lethal blood levels found at autopsy. Buffington opined that the dosages, if taken as prescribed by the defendant, are consistent with the lethal levels found at autopsy. Kline opined that the dosages, if taken as prescribed by the defendant, are insufficient to reach those levels and that Sandra Dallaire had to have taken substantially more than what was prescribed in order to reach the lethal levels found at autopsy.

DR. BUFFINGTON
He posited that Sandra Dallaire likely took three methadone pills, but “even two, based on the literature that we have, is sufficient to have reached the postmortem levels . . . If the goal of the presentation, with appropriate methodology, is to say, can the doses prescribed by Dr. Hsu render levels consistent with fatalities, the answer is yes . . . It would take someone who is significantly “opiate tolerant” to methadone to endure that.” DR. KLINE

He posited that in order to reach the cardiac blood level of 1.48 mg/l of morphine, Sandra Dallaire would have had to have taken in excess of five tablets during the period when she had been prescribed one 60 mg tablet of morphine, and in order to reach the cardiac blood level of 1.01 mg/l of methadone, she would have to have taken in excess of three tablets during the period when she had been prescribed one 40 mg tablet.

DISCUSSION

[T]o prevail in a medical malpractice action, the plaintiff must prove [by a preponderance of the evidence](1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. (Citations omitted; internal quotation marks omitted.)

Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254-55 (2002).

STANDARD OF CARE
CT Page 11967

Neither Adam nor Buffington have persuaded me that the standard of care for a physician engaged in the practice of pain management for patients with chronic severe pain required the defendant to contact Sandra Dallaire’s prior treaters or pharmacy or to obtain her current records to determine her level of drug naivete or tolerance before initiating treatment as he did, or that, failing to do that and without knowing Sandra Dallaire’ s opiate naivete or tolerance, the standard of care required that the defendant initiate treatment with starting doses of drugs.

An opiate naive patient is one who has not previously taken or been exposed to opiates. An opiate-tolerant patient is one whose dose to control symptoms has been escalating, because the metabolism has learned to accommodate and handle the drug more efficiently than before. Based on all the evidence, I am persuaded that on October 27, 2005, Sandra Dallaire was not opiate naive as to morphine, even though Kloth had prescribed none. Nor did she have a significant reduction in methadone tolerance, even though Kloth had significantly reduced the dosages.

Sandra Dallaire had a long history of taking numerous opiates and, for many years, high doses of oxycontin, morphine and methadone. She was not opiate naive. While under Warner’s care, Sandra Dallaire’s tolerance for opiates had greatly escalated. Her metabolism had learned to accommodate high doses of methadone and morphine and oxycontin. On September 29, 2005, while she was under Kloth’s care on significantly reduced prescription of methadone, 40 mg methadone daily, Wisch noted his need to speak with Kloth and the need to “control her pain.” On October 13, 2005, her level of pain remained 10± on a scale of 10. As of that date, the dose prescribed by Kloth to control her symptoms had not de-escalated; her tolerance to methadone had not been greatly reduced.

In rendering their opinions, both Adam and Buffington focus on the defendant’s ignorance as to records reflecting Sandra Dallaire’s current prescription and specifically his ignorance as to what Kloth was or was not prescribing from July 20, 2005 through October 13, 2005. Even though Adam treats patients with chronic pain and prescribes narcotics, he does so incidental to his neurology specialty. He concedes that he practices conservatively, that there is a range of practice and that he would refer an emergent or urgent pain patient to the emergency room. His experience is more akin to that of Wisch, the orthopedic surgeon, who treated Sandra Dallaire’s pain incidental to her surgery and hospitalization, but who felt compelled to refer her complicated pain management problems to Kloth, because she needed to be followed by a pain specialist. Accordingly, I have not given Adam’s opinion weight.

CT Page 11968

Buffington’s opinions likewise do not persuade me as to the prevailing standard of care, because they are founded on the premise that the defendant prescribed based only on old prescription records and that Sandra Dallaire was morphine naive and had greatly reduced tolerance to methadone. The opinion that the prevailing standard of care required the defendant to contact current providers, or Sandra Dallaire’s pharmacy, to determine her naivete or level of tolerance to narcotics reflects a narrow textbook approach to the practice of pain management and ignores the role of patient-physician interaction. Buffington’s opinion that Sandra Dallaire was “morphine naive” is not tenable in light of her known history and undermines his credibility. In reality, Kloth’s records were not indicative of what drugs Sandra Dallaire was taking. On the day she saw the defendant, Sandra Dallaire had taken oxycontin and valium, medications that had not been prescribed by Kloth. More likely than not, she told the defendant that she had taken oxycodone in addition to methadone and Soma and the doses, as noted on the intake page of the defendant’s records.

In addition to reviewing Warner’s prescription records, the defendant spent time with the patient, interviewed her, took a history and physically examined her. He learned before initiating treatment that she was in transition, her medications had been fluctuating, she was in narcotic pain control, what drugs she had taken and that she was without medication. The defendant, even if he had known what Kloth was prescribing, would have prescribed as he did. He was relying on more than Warner’s records when he prescribed methadone and morphine to Sandra Dallaire. The defendant independently assessed the patient, determined her needs, ruled out that she was opiate naive, and based on all the circumstances prescribed morphine, methadone and Xanax.

As to the opinions of both Adam and Buffington that the defendant should have initiated treatment with starting doses of methadone and morphine, the premise is faulty because Sandra Dallaire was not an opiate naive patient; nor did she have a greatly limited tolerance to methadone. The defendant ruled that out, and the facts do not support a finding that she was opiate naive or that she had a greatly reduced tolerance to methadone. Further, the product insert for MS CONTIN is instructive in that it warns only that the 100 and 200 mg tablets are for use in opioid-tolerant patients only, as those strengths might cause fatal respiratory depression, when administered to patients not previously exposed to opioids. (Emphasis supplied). The product insert also recommends beginning treatment using an immediate-release formulation when MS CONTIN is used as the first opioid analgesic. Sandra Dallaire had previously been exposed to tablet doses of 200 mg while under the care of Warner. The morphine prescription of 60 mg sustained CT Page 11969 release tablet every 12 hours was not lethal to her and was not her first opioid analgesic.

The plaintiff has failed to sustain his burden to prove by a preponderance of the evidence the prevailing standard of care.

CAUSATION

In a medical malpractice case, expert testimony is required, to establish the causal relation between an act or omission and its later physical effects. The expert opinion cannot rest on surmise or conjecture because the trier of fact must determine probable cause, not possible cause . . . In other words, the expert opinion must be based on reasonable probabilities.

Gordon v. Glass, 66 Conn.App. 852, 856 (2001).

Buffington and Kline both engaged in lengthy testimony and mathematical calculations to support their respective positions on the number of pills Sandra Dallaire would have to have taken to reach the lethal postmortem cardiac blood levels found at autopsy. The mathematics is straightforward. Application of the results is not.

Not having a pill count and not having postmortem femoral blood toxicology for Sandra Dallaire, the experts relied on ranges of postmortem distributions based on postmortem cardiac/femoral blood ratios for morphine and methadone, data which are reported in Basselt, The Disposition of Toxic Drugs and Chemicals in Man, 8th edition (2009). Notwithstanding the efforts by both experts to persuade as to the accuracy of their calculations, they have not persuaded me of the applicability of the Basselt postmortem distribution ratios to Sandra Dallaire and this case, especially in light of the variables which affect findings on autopsy and postmortem distribution, including such factors as metabolic rate of the subject, tolerance of the subject, time between ingestion and death and between death and autopsy. Buffington explained the problem: “[O]ne of the dilemmas with this case and many is trying to look at postmortem data lab results, and make heads or tails of them with regards to what it meant pre-death. And there are some significant issues that we’re faced with, or challenges in trying to do that.” “When we look at blood results after death, we go from using analytical software and calculators to drawing with crayons.” “[T]here are about eight different categories or reasons of ambiguity, including we know that drug-the heart blood, which is a common place to get a large quantity during the CT Page 11970 autopsy, has the greatest capacity for something called postmortem redistribution.” “[It is] not uncommon to see patients get to those numbers [the methadone and morphine numbers seen in Sandra Dallaire’s blood] through having tolerance.” “There are very little definable values that make this different from person to person, it is how you metabolize and things that can’t be measured.”

I do not find the opinions of the experts based on the Basselt data to be reliable, and I give them no weight.

Even if I were to accept Buffington’s calculation of the number of pills which could result in the postmortem cardiac blood levels detected at Sandra Dallaire’s autopsy, his opinion falls short of what is required in this case, that is, expert opinion, based on reasonable medical probability, that the dosages of morphine and/or methadone prescribed by the defendant, if taken as prescribed, caused the lethal blood levels found at autopsy, that is, that the doses prescribed by the defendant caused opiate toxicity and Sandra Dallaire’s death. No such opinion has been rendered in this case.

Buffington’s opinion addressed the question of whether the prescribed doses of morphine and/or methadone are capable of rendering or explaining a postmortem blood level that is fatal, that is, whether it is plausible or possible that the dose explains the post mortem level. He testified as follows. “The post mortem blood test results were consistent with the dosages prescribed by Dr. Hsu.” “The postmortem blood concentration of methadone was well within the range of possible blood concentrations from the prescription given by Dr. Hsu to Mrs. Dallaire.” Following Dr. Hsu’s prescription she could have taken two or three tablets, which could produce the readings which were observed in the autopsy report.” “My purpose in . . . presenting this to the Court is, is it “plausible” that the dose, as administered, explains the postmortem result. And the answer here is it absolutely does.” (Emphasis supplied throughout).

The plaintiff has failed to sustain his burden to prove causation by a preponderance of the evidence.

FORESEEABILITY CLAIM
The plaintiff also asserts a claim that if Sandra Dallaire had taken more medication than prescribed, her potential for an abuse of the prescriptions or an overdose was foreseeable. Because I have not considered either Buffington’s or Kline’s opinions as to the number of pills Sandra Dallaire would have to have taken in order to reach the lethal levels found at autopsy, there has been no finding by me that CT Page 11971 Sandra Dallaire took more medications than prescribed or overdosed. There is no need to make such a finding, because it is the plaintiff’s burden to prove causation and he has not done so. Further, because the plaintiff has failed to sustain his burden of proof on the claims raised in his complaint, the court does not address the defendant’s special defenses or his burden to prove that Sandra Dallaire took more than what was prescribed. The case of Edwards v Tardif, 240 Conn. 610 (1997) is not apposite.

CONCLUSION
For the foregoing reasons, judgment enters in favor of the defendant and against the plaintiff.

CT Page 11973