Guiliano v. Jefferson Radiology, P.C.

206 Conn.App. 603

261 A.3d 140

Ronna-Marie GUILIANO

v.JEFFERSON RADIOLOGY, P.C., et al.

AC 42835

Appellate Court of Connecticut.

Argued April 14, 2021

Officially released August 10, 2021

John R. Williams, New Haven, for the appellant (plaintiff).

Kristin Connors, with whom was Rebecca N. Brindley, for the appellees (named defendant et al.).

Bright, C.J., and Alvord and Devlin, Js.

BRIGHT, C.J.

The plaintiff, Ronna-Marie Guiliano, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendants William S. Poole, a physician, and Jefferson Radiology, P.C. (Jefferson Radiology).¹ On appeal, the plaintiff claims that the trial court abused its discretion by sustaining the objections of the defendants’ counsel to the form of certain questions her counsel had posed to one of her expert witnesses. Additionally, the plaintiff claims that the trial court abused its discretion and violated her constitutional right of access to the courts by placing a time limit on her direct examination of a second expert witness. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiff's appeal. The plaintiff commenced the present action on April 21, 2014. In her operative complaint, the plaintiff alleged that she had a mammogram conducted by Jefferson Radiology in August, 2010. In December, 2010, the plaintiff complained to a physician of a lump in her left breast. In January, 2011, the plaintiff attended an appointment with her primary care physician, who ordered an ultrasound on her left breast. A few days after the appointment, Jefferson Radiology performed an ultrasound on the plaintiff's left breast. The reviewing physician noted that a "small, benign appearing intramammary lymph node is seen," and a routine mammographic follow-up was recommended for the plaintiff. In August, 2011, the plaintiff again complained of a lump in her left breast to a health-care provider. A bilateral mammogram was conducted and a routine follow-up was recommended.

In September, 2012, the plaintiff again reported to her primary care physician that she had a lump in her left breast. Jefferson Radiology performed a bilateral mammogram and an ultrasound on her right breast.² Poole reviewed the mammograms and ultrasound. Poole noted that the "[n]odular density in the left breast is benign," the "palpable abnormality felt by the provider in the right breast at 12 o'clock is not seen on ultrasound," and "there is no sonographic evidence of malignancy." Poole recommended that the plaintiff return in one year for a screening.

In March, 2013, the plaintiff again complained of a lump or thickening of her left breast, and Jefferson Radiology conducted a mammogram and ultrasound on the plaintiff's left breast. Jefferson Radiology identified calcification, a mass, and an abnormal lymph node in the plaintiff's left breast. On March 8, 2013, the plaintiff underwent a biopsy of the lump and the abnormal lymph node. The tissue from the biopsy demonstrated that the plaintiff was suffering from infiltrating mammary carcinoma, and the left axillary lymph node biopsy showed a metastatic mammary carcinoma. In July, 2013, the plaintiff underwent bilateral mastectomies as well as removal of multiple lymph nodes.

In her operative complaint, the plaintiff set forth claims of negligence and vicarious liability. The plaintiff alleged, inter alia, that the defendants’ negligence in failing to timely diagnose a malignancy in her left breast resulted in a delay in the diagnosis and treatment of her cancer. A jury trial commenced on March 19, 2019. During the trial, the plaintiff presented the testimony of two expert witnesses, Linda Griska and Kenneth Leopold. The testimony of both of these witnesses is at issue in this appeal. Griska, a diagnostic radiologist specializing in breast imaging, testified that Poole violated the relevant standard of care for a radiologist in 2012 when he reviewed the results of the plaintiff's September, 2012 mammogram and ultrasound. In particular, she testified that Poole failed to take additional views of the left breast based on the results of the mammogram. She also testified that Poole should have conducted an ultrasound on the left breast at that time.

Leopold, the plaintiff's treating radiology oncologist, testified to the radiation treatment the plaintiff received and the effects that the defendants’ delayed diagnosis of the plaintiff's breast cancer had on her treatment.

Despite the testimony of Griska and Leopold, on April 4, 2019, the jury returned a verdict in favor of the defendants. The court accepted the jury's verdict and rendered judgment for the defendants. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the trial court abused its discretion by sustaining the objections of the defendants’ counsel to the form of certain questions that her counsel had posed to Griska. The plaintiff argues that the defendants’ counsel engaged in a deliberate strategy to confuse the plaintiff's counsel and that the court "consciously participated in that strategy by prohibiting [the] plaintiff's attorney from consulting with anyone other than cocounsel in her attempt to comprehend the reasons why the court was excluding her proposed evidence and explicitly refusing to explain in what respects the court considered the questions to be objectionable." The plaintiff argues that it was clear to the court that the plaintiff's counsel did not comprehend the basis of the court's rulings sustaining the objections to her questions to Griska. The plaintiff further argues that she was precluded from presenting "critical expert evidence" in support of her claim as a consequence of the court's rulings and that she can only speculate as to the court's grounds for sustaining the repeated objections to the plaintiff's questions.

The defendants argue that the plaintiff failed to preserve her claims concerning the court's evidentiary rulings as to Griska, the court's rulings were proper, and any errors in the court's rulings were harmless. We agree with the defendants that the court's rulings were harmless because they did not prevent the plaintiff from eliciting relevant expert testimony from Griska. Consequently, we do not address whether the plaintiff properly preserved her claim or the propriety of the court's rulings.

The following additional facts and procedural history inform our conclusion. In the section of the plaintiff's appellate brief titled "statement of the case," the plaintiff states that the trial court imposed unexplained limits on the presentation of her case and references the following colloquy that occurred during the direct examination of Griska on the afternoon of March 19, 2019:

"[The Plaintiff's Counsel]: Okay. And in a patient that presents with—with a nodular density, is taking one spot view the standard of care to explore that?

"[The Defendants’ Counsel]: Objection to the form.

"The Court: Sustained.

"[The Plaintiff's Counsel]: Do you have an opinion as to whether Dr. Poole's imaging breached the standard of care?

"[The Defendants’ Counsel]: Objection as to the form.

"The Court: Sustained.

"[The Plaintiff's Counsel]: When a radiologist observes a nodular density, how should they explore that?

"[The Defendants’ Counsel]: Objection to the form.

"The Court: Okay. I'm going to allow that question. Go ahead.

"[The Witness]: Could you repeat the question?

"[The Plaintiff's Counsel]: Yes. If a—if a radiologist observes a nodular density, how—what steps should they take to explore that?

"[The Defendants’ Counsel]: Objection to the form, Your Honor.

"The Court: All right.

"[The Defendants’ Counsel]: May we approach?

"The Court: Yes.

(Sidebar)

"The Court: All right. The court's going to sustain the objection. All right. Counsel.

"[The Plaintiff's Counsel]: One moment, Your Honor.

"[The Plaintiff's Counsel]: Dr. Griska, do you have an opinion based on medical certainty as to whether Dr. Poole breached the standard of care?

"[The Defendants’ Counsel]: Objection to the form. If we could be heard, Your Honor.

"The Court: Yeah. You want to be heard outside—can we hear this outside the presence of the jury?

"[The Defendants’ Counsel]: Yes, please.

"The Court: All right. I'm going to ask the jury to step into the jury room for a moment.

(Jury exits the courtroom)

"The Court: Okay.

"[The Defendants’ Counsel]: Your Honor, if Dr. Griska could be excused while we have this argument outside the presence of her.

"The Court: Okay. Where is she? All right. Oh, there you are. If you just step in the hallway for me, please.

(Witness exits the courtroom)

"The Court: Okay. So, the objection has to do with now because you're getting into the critical part of your examination, asking questions related to the expert opinions—the expert's opinion on the very topic. And there's a series of questions that have to be asked in the proper way, in the proper format for you to get that in. So, do you need a break to figure that—I mean, I'm not going to tell you what to do.

"[The Plaintiff's Counsel]: Yes, Your Honor.

"[The Defendants’ Counsel]: Well, I would object to a break, Your Honor. This is the essence of the case.

"The Court: Okay.

"[The Defendants’ Counsel]: I—that—I think that—

"The Court: Well.

"[The Defendants’ Counsel]: This is a serious matter to both of the parties.

"The Court: I know it is. I know it is.

"[The Defendants’ Counsel]: And so, there should not be a break for [the plaintiff's counsel] to figure out what should have been known before the lawsuit was filed.

"The Court: Well, and also before the case was brought, you know, what questions you're going to ask in what precise order at the key time in the examination. So, are you ready to go forward?

"[The Plaintiff's Counsel]: Your Honor, if I could have a ten minute break, I would appreciate it.

"The Court: But the problem is that with I think counsel is going to say is...