Justia.com Opinion Summary: Plaintiffs, Erik and Carrie Pin, brought a medical malpractice action against Defendants, orthopedic surgeon David Kramer and Danbury Orthopedic Associates, seeking, inter alia, compensatory damages for Kramer's negligence in his surgical treatment of a spinal tumor suffered by Erik. The jury returned a verdict in favor of Defendants. The appellate court reversed, holding that a new trial was required because the trial court had failed to grant Plaintiffs' request for a curative instruction following remarks by Defendants' expert witness, during his direct examination testimony, concerning increased health care costs caused by defensive medicine practices arising from the proliferation of medical malpractice claims in Connecticut. The Supreme Court affirmed, holding that the appellate court court did not err in its judgment.
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ERIK M. PIN ET AL. v. DAVID L.
KRAMER ET AL.
(SC 18572)
Norcott, Palmer, Zarella, McLachlan, Eveleigh and Vertefeuille, Js.
Argued March 20—officially released May 8, 2012
Robert C. E. Laney, with whom were Daniel E. Ryan
III and, on the brief, Lauren E. Abbate, for the appellants (defendants).
Lawrence F. Reilly, for the appellees (plaintiffs).
Brenden P. Leydon filed a brief for the Connecticut
Trial Lawyers Association as amicus curiae.
Opinion
PER CURIAM. The defendants, David L. Kramer, an
orthopedic surgeon, and Danbury Orthopedic Associates, P.C., appeal, upon our grant of their petition for
certification,1 from the judgment of the Appellate Court,
reversing the judgment of the trial court in their favor,
rendered after a jury trial in this medical malpractice
action brought by the plaintiffs, Erik M. Pin and Carrie
L. Pin.2 Pin v. Kramer, 119 Conn. App. 33, 46, 986 A.2d
1101 (2010). On appeal, the defendants contend that
the Appellate Court improperly concluded that a new
trial was required because the trial court had failed to
grant the plaintiffs’ request for a curative instruction
following remarks by the defendants’ expert witness,
during his direct examination testimony, concerning
increased health care costs caused by defensive medicine practices and increased malpractice insurance premiums arising from the proliferation of medical
malpractice claims in Connecticut. Id., 43, 45–46. We
disagree and affirm the judgment of the Appellate Court.
Briefly, we note the following relevant facts and procedural history as revealed by the record and the Appellate Court opinion. The plaintiffs brought this medical
malpractice action against the defendants seeking, inter
alia, compensatory damages for Kramer’s negligence in
his surgical treatment of a spinal tumor suffered by
the plaintiff. The plaintiffs contended specifically that,
because of Kramer’s negligence, the plaintiff was
required to undergo two additional spinal surgeries,
causing him to suffer from unnecessary pain, emotional
distress and increased physical limitations and risk of
future back problems, and Carrie L. Pin, his mother, to
incur additional medical bills and expenses on his
behalf. At trial, one significant factual issue was
whether the standard of care required Kramer to order
additional radiological tests, such as X rays, computerized tomography (CT) scans or magnetic resonance
imaging (MRI) scans, prior to performing the first surgery on the plaintiff on December 28, 2001, in order to
determine whether the tumor had grown or otherwise
changed since it was first detected in April, 2001, and
also after the surgery in order to monitor the plaintiff’s
recovery. See id., 36–38.
On the eighth day of trial, the defendants’ medical
expert, Todd Albert, an orthopedic surgeon, testified
that ‘‘the standard of care did not require additional
radiology tests,’’ but then ‘‘explained why he would have
ordered such tests had he been the treating physician.
When asked why he would have ordered the radiology
tests, Albert explained:
‘‘ ‘Well, a few reasons. One, I am with residents, fellows, and medical students all the time. So, we are
ordering a lot of tests on everything so they have the
opportunity to read them. And you could say, oh, that’s
wasteful, but that is part of being at a teaching institution. One. It is for teaching purposes as much as anything, for they have one more chance to look at just
one more—they have another dot in their exposure.
‘‘ ‘The second reason is much different than in this
part of the country and this state. I live in the worst
malpractice community in the world. And . . . we
practice a lot of defensive medicine. It’s true. It’s unfortunate, but it’s true. And so we order way more tests.
You hear about the cost of medicine going up. We are
the epicenter of it because we have more doctors leaving because they can’t get insurance and things like
that. So, we order way more tests than are necessary
to protect ourselves. And that’s just a fact. And so we
get acclimated to practicing like that. So, there’s lots
of reasons.’ ’’ Id., 40. At that point, the ‘‘plaintiffs
requested a mistrial, or in the alternative, an instruction
to Albert not to refer to ‘things like that again,’ as well
as a curative instruction to the jury.’’ Id., 41. The trial
court denied the plaintiffs’ requests, determining that
the mention of insurance was more prejudicial to the
defendants and that ‘‘there was no prejudice toward
the plaintiffs, and, considering the length and expense
of the trial, it would be unjust to grant the motion for
a mistrial.’’ Id., 41–42. Subsequently, the jury returned
a verdict in favor of the defendants, and the trial court
denied the plaintiffs’ motion to set aside the verdict.
See id., 39.
The plaintiffs then appealed from the judgment of
the trial court to the Appellate Court, claiming, inter
alia, that the trial court had abused its discretion in
denying their request for a curative instruction and
motion for a mistrial.3 The Appellate Court concluded
that the trial court’s ‘‘failure to issue a curative instruction in the face of Albert’s inflammatory and prejudicial
testimony was an abuse of discretion that likely influenced the jury’s deliberations. Although the improper
statements by Albert were not pervasive, they introduced a highly controversial and legally improper issue
into the case. We conclude that based on the likelihood
of prejudice, due to the nature of Albert’s comments,
and the court’s refusal to provide the jury with an appropriate curative instruction, the plaintiffs were harmed.
Accordingly, the plaintiffs were deprived of their right
to a fair trial.’’ Id., 45–46. Accordingly, the Appellate
Court reversed the judgment of the trial court and
remanded the case for a new trial. Id., 46. This certified
appeal followed. See footnote 1 of this opinion.
Our examination of the record and briefs and our
consideration of the arguments of the parties persuade
us that the judgment of the Appellate Court should be
affirmed on the certified issue. Pin v. Kramer, supra,
119 Conn. App. 43–46. That issue was resolved properly
in the Appellate Court’s concise and well reasoned opinion. Because that opinion fully addresses all arguments
raised in this appeal, we adopt it as a proper statement
of the issue and the applicable law concerning that
issue. It would serve no useful purpose for us to repeat
the discussion contained therein. See, e.g., Clinch v.
Generali-U.S. Branch, 293 Conn. 774, 777–78, 980 A.2d
313 (2009).
The judgment of the Appellate Court is affirmed.
1
We granted the defendants’ petition for certification to appeal limited
to the following issue: ‘‘Did the Appellate Court properly determine that the
trial court incorrectly failed to give a curative instruction and, if so, was
such failure harmful?’’ Pin v. Kramer, 295 Conn. 911, 989 A.2d 1074 (2010).
2
‘‘Carrie L. Pin brought this action as a parent and next friend of her
minor son. She also brought the action on her own behalf for damages
arising from her son’s injuries.
‘‘Erik M. Pin is referred to in this opinion individually as the plaintiff, and
Erik M. Pin and his mother, Carrie L. Pin, are referred to collectively in this
opinion as the plaintiffs.’’ Pin v. Kramer, 119 Conn. App. 33, 35 n.1, 986
A.2d 1101 (2010).
3
The plaintiffs also claimed that the trial court ‘‘improperly (1) restricted
their questioning of potential jurors during voir dire, (2) assumed the role
of an advocate and interfered with the presentation of their case, examination of witnesses and cross-examination of the defendants’ expert witness,
(3) refused to admit Kramer’s deposition testimony into evidence, (4) prevented them from offering rebuttal testimony regarding the defendants’
learned treatises, as well as interfered with their cross-examination by
improperly finding that they lacked foundation for questions regarding the
learned treatises, (5) applied the learned treatise doctrine to admit inadmissible hearsay and (6) denied their motion for a mistrial or for a curative
instruction after hearing improper and harmful testimony from the defendants’ medical expert.’’ Pin v. Kramer, supra, 119 Conn. App. 35. The Appellate Court did not address these issues, concluding that ‘‘they are issues
that are not likely to arise again in a retrial of this case.’’ Id., 35 n.2.
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