Date: 09-25-2001

Case Style: Kaila Marshall v. Hartford Hospital, et al.

Case Number: 20345

Judge: Dupont

Court: Appellate Court of Connecticut

Plaintiff's Attorney: William J. Sweeney, Jr. and Ktarzyna Maluszewski, New Britain, Connecticut

Defendant's Attorney: Donna R. Zito and Stephen V. Manning, Bridgport, Connecticut

Description: The primary issues in this medical malpractice action brought by a mother on behalf of her minor child are whether there was a unity of interest between the two defendants, Victor C. Herson, a physician (defendant physician), and Hartford Hospital (defendant hospital), for purposes of determining the number of peremptory challenges in the selection of a jury, and whether the trial court properly directed a verdict for the defendant physician and refused to set aside a jury verdict for the defendant hospital. We affirm the judgment of the trial court.

The plaintiff, Kaila Marshall, was born prematurely at Hartford Hospital. Six days after birth, she developed complications from the insertion of an intravenous catheter that resulted in the loss of her fingers on one hand.1 The plaintiff alleged that the defendant hospital and the defendant physician, who was the attending neonatologist in the defendant hospital’s neonatal intensive care unit, were negligent in diagnosing and treating the complications. At the conclusion of the plaintiff’s case, the court directed a verdict in favor of the defendant physician. At the conclusion of the entire case, the jury returned a verdict in favor of the defendant hospital,2 which the court refused to set aside.

In the first count against the defendant hospital, the plaintiff alleged that the negligence and carelessness of the defendant hospital through its agents, servants or employees, or all of them, who were acting within the scope of their agency, service or employment, caused her injuries, because, after discerning that the IV insertion had blocked the flow of blood to her hand, they failed to prevent necrosis3 and committed acts that promoted it. That allegation fails to identify a specific employee, servant or agent. The complaint also alleged that specific employees, not including the defendant physician, were negligent and careless because they (1) applied warm soaks to the plaintiff’s wrist and hand, which promoted necrosis, and (2) failed to call a physician immediately. The complaint further alleged that the defendant physician, as an agent, servant or employee, was negligent in that he neglected to attend to the plaintiff in a timely fashion, thereby losing or decreasing the chance for successful treatment. The other allegations as to the defendant hospital do not name specific employees, agents or servants, but allege failure to treat the plaintiff in a timely fashion, lack of a sufficiently trained or experienced staff to deal with the plaintiff’s condition, and failure to train its staff properly for the diagnosis and treatment of arterial insufficiency.

The plaintiff’s second count was against the defendant physician in his individual capacity and described him as an attending physician in the neonatal unit of the defendant hospital. The defendant physician allegedly did not exercise the degree of skill or care ordinarily exercised by physicians in that (1) he failed to attend to the plaintiff in a timely fashion, thereby losing or minimizing the chance for successful treatment, and (2) he neglected to obtain consultations from other physicians with more experience in dealing with the plaintiff’s condition so as to lose or decrease the chance for successful treatment.

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The court, Wollenberg, J., presided over jury selection. That court ruled on June 8, 1999, that no unity of interest between the defendant physician and the defendant hospital existed and, consequently, allowed each defendant four peremptory challenges.

The court, Graham, J., presiding, reviewed the record and consulted with counsel in connection with the plaintiff’s motion for rectification and articulation regarding peremptory challenges. Judge Graham found that nine jurors were chosen after Judge Wollenberg’s ruling, that the plaintiff had four peremptory challenges at the start of jury selection, that the defendants together had eight peremptory challenges, that the plaintiff had used all four of her challenges prior to the selection of the ninth juror, that two jurors were excused after the selection of the ninth juror prior to trial, that the court gave the plaintiff and the defendants each one extra challenge, that the plaintiff used that extra challenge prior to the selection of two additional jurors, and that in total, the defendants had nine challenges and the plaintiff five challenges.

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The plaintiff argues that the court improperly restricted her to four peremptory challenges while allowing the defendants eight challenges, which ruling affected the outcome of the trial. The plaintiff reasons that if the court had limited the defendants to four peremptory challenges, a wholly different jury panel would have been selected and that, because a party can never reconstruct the use of challenges, a new trial is needed. The plaintiff claims that a unity of interest exists because the defendant physician is an employee of the defendant hospital, thereby making the defendant hospital liable for his negligent acts, and because the defendant physician and the defendant hospital do not have an adverse relationship. The plaintiff admits that the question involves the trial court’s discretion. See Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 465, 736 A.2d 811 (1999); Rivera v. Saint Francis Hospital & Medical Center, 55 Conn. App. 460, 463, 738 A.2d 1151 (1999).

If the plaintiff is correct, a new trial would be necessary; Krause v. Almor Homes, Inc., 147 Conn. 333, 336, 160 A.2d 753 (1960); Rivera v. Saint Francis Hospital& Medical Center, supra, 55 Conn. App. 464; and the issues raised in her other claims would not be reached.6

A review of Connecticut cases on the subject of peremptory challenges is instructive. Those cases arising before 1993, when the legislature amended the statute concerning peremptory challenges by adding and then defining the words ‘‘unity of interest’’; see footnote 4; hold that the words ‘‘each party,’’ as used in General Statutes (1930 Rev.) § 5577, the forerunner of General Statutes § 51-241, mean every plaintiff and every defendant is entitled to his, her or its own peremptory challenges. Mourison v. Hansen, 128 Conn. 62, 67, 20 A.2d 84 (1941); Commercial Union Ins. Co. v. Frank Perrotti & Sons, Inc., 20 Conn. App. 253, 262, 566 A.2d 431 (1989). This is so despite the recognition in at least one Connecticut case that other states have interpreted statutes containing similar language to mean that all parties who are one side of an action must share the statutory number of peremptory challenges unless their interests are diverse or antagonistic. Mourison v. Hansen, supra, 67.

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General Statutes § 52-184c (d) provides: ‘‘Any health care provider may testify as an expert in any action if he: (1) Is a ‘similar health care provider’ pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.’’

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The plaintiff next claims that the court should have granted her motion to set aside the jury verdict for the defendant hospital primarily because the court improperly allowed three physicians to testify as expert witnesses for the defendant. The plaintiff challenges the qualifications of John Grossman, a specialist in pediatric surgery, Steven Ruby, a professor of surgery at the University of Connecticut School of Medicine with subspecialty training in vascular surgery, and William Hellenbrand, a professor of pediatrics at Yale University School of Medicine who is board certified in both pediatrics and pediatric cardiology. The three experts testified as to the standard of care the hospital staff should have given the plaintiff with regard to the warm soaks and the failure to call a physician in a timely fashion. The plaintiff claims that the defendant hospital’s experts were not neonatologists and therefore lacked the statutorily mandated qualifications to testify as experts. The plaintiff also claims that the experts lacked sufficient training, expertise and knowledge from the practice or teaching in a related field of medicine to testify as to the standard of care in the field of neonate pediatrics.

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Click the case caption above for the full text of the Court's opinion.

Outcome: The judgment is affirmed.

Plaintiff's Experts: Dr. Polland

Defendant's Experts: Dr. John Grossman and Dr. Steven Ruby, University of Connecticut School of Medicine vascular surgeon and Dr. Hellenbrand, pediatric cardiologist from Yale University School of Medicine.

Comments: E-mail suggested comments and/or corrections to: Kent Morlan

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