Barnes v. Connecticut Podiatry Group, Inc.

Kenneth Barnes v. Connecticut Podiatry Group, Inc. et al

No. CV126027801S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

July 26, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE PRECLUSION OF PLAINTIFF'S EXPERT

LINDA K. LAGER, JUDGE.

This is a professional negligence case in which the plaintiff Kenneth Barnes (Barnes) alleges that Marc Daddio, DPM (Daddio), an employee or agent of the Connecticut Podiatry Group, P.C. (defendants), deviated from the applicable podiatric standard of care in rendering treatment to him between February 10 2011 through May 21, 2011 and that breach caused Barnes to suffer " multiple surgeries and amputations of the left and right foot." (Amended complaint, entry #153, ¶ ¶ 3-9.) The plaintiff disclosed Jack Gorman, DPM (Gorman) as his expert on standard of care and causation (entry #110 as amended by entry #138). Although the allegations of the complaint and the expert disclosure differ slightly, ^[1] the essence of Gorman's opinion is that the standard of care required Daddio to immediately suspect and test Barnes for vascular insufficiency and immediately refer Barnes to a vascular specialist.

The defendants have filed a number of motions (entries ##175 183, 184, 185) seeking to preclude Gorman's testimony on multiple grounds including that he is not qualified to serve as an expert as to the particular matters in issue for which he has been disclosed as required by the Connecticut Code of Evidence (#183), that he lacks a factual basis for his opinions (##175, 184), that his opinions are speculative (#175), that he does not satisfy the similar health care provider requirements of General Statutes § 52-184c(c) (#185), that his causation opinions are outside of the scope of his expertise (#184) and that his opinions on standard of care and causation fail to satisfy the requirements of State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) and its progeny (##175, 183, 184). By way of an order dated June 27, 2016, ^[2] the court scheduled argument for July 15, 2016 on all but the Porter claims and permitted the plaintiff to submit responsive briefs, which he did. At the July 15th argument, the court gave the plaintiff the opportunity to supplement the factual record through an evidentiary hearing^[3] or by submitting affidavits. The plaintiff elected to submit an affidavit executed by Dr Gorman on July 18, 2016 (entry #193).

The following facts are relevant to the determination of these motions. Daddio is a doctor of podiatric medicine who practices in Connecticut. He is board certified by the American Board of Foot and Ankle Surgery f/k/a as the American Board of Podiatric Surgery or the American Podiatry Board.^[4] Gorman obtained a degree as a doctor of podiatric medicine in 1967 and has practiced exclusively in Pennsylvania. He was board certified in 1978 by an organization known as the American Board of Ambulatory Foot Surgery (ABAFS) which no longer exists. As a result of certain litigation, ABAFS became a section or division of the American Board of Foot and Ankle Surgery in the 1980s. Gorman is board certified by the latter organization as an ABAFS diplomate " certified for office-based and outpatient foot surgery." In the course of his podiatric practice, Gorman has treated patients with ulcers, gangrene, diabetes and vascular problems.

At the time Barnes presented to the defendants in February 2011 he was in end stage renal failure, dialysis dependent and had a sore on the second digit of his left toe which was subsequently noted to be gangrenous. Daddio amputated the second digit on March 17, 2011. There is no claim that he violated the standard of care in performing this amputation. On March 24, 2011, Daddio referred Barnes to a vascular surgeon, Dr. Antoine Ferneini, who first saw Barnes on April 4, 2011, performed tests, performed an angioplasty on the right leg on May 24, 2011 and a right transmetatarsal amputation on June 7, 2011. Subsequently, Dr. Ferneini amputated two more toes on Barnes' left foot in August 2011. No claims of professional negligence have been brought against Dr. Ferneini.

The following general principles apply to the determination of these motions. In order to prevail in a medical malpractice case, a plaintiff must establish that the professional negligence of the defendant health care provider, that is the defendant's deviation from the prevailing professional standard of care, was an actual cause, or cause in fact, and the proximate cause of the plaintiff's injuries. Boone v. William W. Backus Hospital, 272 Conn. 551, 571, 864 A.2d 1 (2005). In most medical malpractice cases, including this one, expert medical opinion is required to establish the standard of care and causation. Milliun v. New Milford Hospital, 310 Conn. 711, 725, 80 A.3d 887 (2013). An expert proffered to testify on the standard of care must meet the statutory requirements for a similar health care provider set forth in General Statutes § 52-184c and also must be qualified to testify as an expert under Connecticut Code of Evidence § § 7-2 and 7-4. While " specialized certifications or degrees are not prerequisites to qualification for medical causation opinions, " Weaver v. McKnight, 313 Conn. 393, 407, n.2, 97 A.3d 920 (2014), the opinions rendered must be " within the scope of the expert's knowledge and experience, " Tiplady v. Maryles, 120 A.3d 528, 158 Conn.App. 680, cert. denied, 319 Conn. 946, 125 A.3d 527 (2015), and cannot be speculative. Russo v. Phoenix Internal Medicine Associates, PC, 109 Conn.App. 80, 92, 950 A.2d 559 (2008).

I.

The court will first address the defendants' claim that Gorman fails to meet the requirements of § 52-184c. In cases in which a claim of negligence is made against a health care provider, § 52-184c establishes the standard of care and governs the requirements for proving it. The statute provides, in relevant part, that " the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." General Statutes § 52-184c(a). The standard of care or, to frame it another way, the applicable duty of a particular health care provider to a particular plaintiff, must be established through expert testimony from a similar health care provider, General Statutes § § 52-184c(b) and (c), or from a health care provider who the court determines, in the exercise of its discretion, possesses sufficient relevant training, experience and knowledge. General Statutes § 52-184c(d)(2); see Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 15, 12 A.3d 865 (2011).

Daddio is board certified by the American Board of Foot and Ankle Surgery f/k/a as the American Board of Podiatric Surgery or the American Podiatry Board. See note 4 supra . The defendants maintain that Gorman does not qualify as a similar health care provider pursuant to § 52-184c(c)^[5] because he was originally board certified in 1978 by a different organization known as the American Board of Ambulatory Foot Surgery (ABAFS) which no longer exists. It is not disputed that in 1982 the ABAFS became a section or division of the American Board of Foot and Ankle Surgery. From that date, Dr. Gorman has been board certified as an ABAFS diplomate " certified for office-based and outpatient foot surgery." Since the 1980s, the American Board of Foot and Ankle Surgery has been the sole certification board by which doctors of podiatric medicine can become board certified podiatric surgeons if they meet its educational and testing requirements. Dr. Gorman has not achieved that board certification.

Pursuant to § 52-184c(c), a " similar health care provider must be trained and experienced in the same specialty and certified by the appropriate American board . . . A similar health care provider does not have to be certified by the same board as the defendant health care provider, but rather must be board certified in the same specialty." (Internal quotation marks omitted; citations omitted.) Gonzales v. Langdon, 161 Conn.App. 497, 505, 128 A.3d 562 (2015). Thus, the fact that Gorman possesses a grandfathered and more restrictive board certification than Daddio does not automatically disqualify him from testifying as a similar health care provider pursuant to § 52-184c(c), assuming that he is offering testimony about " matters that fall within the scope of both professionals' certification, " Wilkins v. Connecticut Childbirth & Women's Center, 314 Conn. 709, 735, 104 A.3d 671 (2014), and that the standard of care applicable to him is the same as that applicable to Daddio. Gonzales v. Langdon, supra, 161 Conn. 505. Whether there is sufficient evidence regarding the applicable standard of care will be addressed below.

Expert testimony may be admitted from a health care provider who is certified in a different or overlapping field from that of the defendant when there is evidence that the treatment or procedure is common to that specialty as well as to the defendant's specialty and that likewise the standard of care for that treatment or procedure is also common. Katsetos v. Nolan, 170 Conn. 637, 646-47, 368 A.2d 172 (1976); Marshall v. Yale Podiatry Group, 5 Conn.App. 5, 8-9, 496 A.2d 529 (1985). " Medical specialties overlap, and it is within the court's discretion to consider that fact in exercising its discretion . . . It is not the artificial classification of a...