Ruff v. Yale-New Haven Hospital, Inc. , 172 Conn. App. 699 ( 2017 )

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MICHAEL RUFF v. YALE-NEW HAVEN
HOSPITAL, INC., ET AL.
(AC 37749)
DiPentima, C. J., and Keller and West, Js.
Argued October 25, 2016—officially released May 2, 2017
(Appeal from Superior Court, judicial district of New
Haven, Wilson, J.)
John Kardaras, for the appellant (plaintiff).
Kim E. Rinehart, with whom, on the brief, was Erika
L. Amarante, for the appellee (named defendant).
Opinion
WEST, J. In this medical malpractice case, the plain-
tiff, Michael Ruff, appeals from the trial court’s granting
of the motion by the defendant Yale-New Haven Hospi-
tal, Inc., for a directed verdict and the judgment ren-
dered in favor of the defendant. On appeal, the plaintiff
claims, inter alia, that the court erred in: (1) precluding
the expert testimony of his sole standard of care wit-
ness, Donna Maselli, a registered nurse; and (2) granting
the defendant’s motion for a directed verdict based on
its preclusion of Maselli’s testimony.1 We disagree and
affirm the judgment of the trial court.
The record reveals the following facts and procedural
history. The plaintiff was a patient at the defendant
hospital for a total right knee replacement surgery on
February 4, 2010, performed by Dr. Richard Pelker. In
advance of the surgery, and after the plaintiff was given
anesthesia, the defendant Dianne Meltzer,2 a registered
nurse and employee of the defendant hospital, inserted
a Foley catheter3 into the plaintiff’s bladder to drain his
urine during and after the surgery. Pelker then per-
formed the knee replacement surgery, and the catheter
remained inserted in the plaintiff’s bladder. Meltzer tes-
tified in her deposition that she did not meet any resis-
tance when inserting the catheter, and that it was a
‘‘successful insertion’’ because the plaintiff’s urine
began draining immediately. Meltzer noted that the
urine was ‘‘light red’’ with blood, which she testified
could indicate that there was some irritation in the
urethra from the procedure or that the patient was on
medication that could cause bleeding.
On February 8, 2010, the plaintiff was discharged
from the hospital to Montowese Rehabilitation Facility
in North Haven (Montowese) for rehabilitation of his
knee. While there, he was having difficulty urinating
and saw blood in his urine. The staff at Montowese
changed his catheter and later sent him to the defendant
hospital, where hospital staff ‘‘inserted about . . .
three or four catheters.’’ He returned to Montowese, and
around February 16, 2010, his catheter was removed. By
February 18, 2010, the plaintiff was not having trouble
urinating and did not have blood in his urine. On March
14, 2010, however, the plaintiff was sent to the emer-
gency room of the Hospital of Saint Raphael because
he was unable to urinate. The emergency room nursing
staff was unable to place a catheter, so the on-call
urologist, Dr. Joseph Camilleri, treated him. Because
of a stricture in the plaintiff’s urethra, Camilleri had to
dilate the plaintiff’s urethra in order to insert a catheter
to drain his urine. This procedure did not result in
any blood in the plaintiff’s urine. Camilleri thereafter
became the plaintiff’s urologist and was still his treating
urologist at the time of trial.
Before becoming a patient of Camilleri’s, the plaintiff
had been treated by other urologists for a long history of
urological problems, including the inability to urinate,
erectile dysfunction, and blood in his urine. The plaintiff
testified that he had been catheterized ‘‘many times’’
during different surgical procedures prior to his knee
replacement surgery and, after one such surgical proce-
dure, he experienced difficulty urinating for ‘‘two to
three months’’ and had to self-catheterize at home. In
the 1980s, he was admitted to the hospital many times
for the inability to urinate, was treated at a urology
clinic, and was under the ongoing care of a urologist.
In the 1990s, he was treated by his urologist for an
enlarged prostate. In 1998, he was treated by his urolo-
gist for erectile dysfunction. In 2003, he was treated by
his urologist because he was having difficulty urinating
and also was experiencing ‘‘urine running down [his]
leg.’’ In 2004, he had a heart procedure, during which
a Foley catheter was inserted into his bladder, which
led to him having ‘‘dark, red urine with blood clots.’’
At the time of his knee surgery, on February 4, 2010,
the defendant was taking ‘‘twenty-five or so medications
a day’’ for his various health conditions, including blood
thinners and medication to treat his enlarged prostate.
The plaintiff commenced this medical malpractice
action on January 10, 2011, claiming that Meltzer negli-
gently had inserted the Foley catheter on February 4,
2010, puncturing his prostate. He alleged that the defen-
dant ‘‘through its agents, servant, employee and/or inde-
pendent contractors under their control in treating and
caring for the plaintiff . . . failed to exercise a degree
of care, skill and diligence ordinarily exercised by hospi-
tals engaged in the specialty of treating patients in the
community with the need for surgery’’ and put forth a
number of further allegations in support of that con-
tention.4 He sought damages on the basis of his allega-
tion that he sustained injuries from the catheter
insertion and had to undergo additional testing, and
medical and surgical procedures; had to take additional
medication; had ‘‘extensive scarring, pain and suffer-
ing’’; had lost the ability to ejaculate; had incurred addi-
tional medical expenses; and ‘‘[had] been deprived of
his ability to carry out life’s normal activities, recre-
ation, social activities, and sexual activities.’’
Prior to trial, the plaintiff disclosed to the defendant
that registered nurse Maselli would testify as his sole
standard of care expert. The defendant deposed Maselli
on December 13, 2013, and she testified that since 1995,
she had worked as a nurse consultant for the Depart-
ment of Public Health (department). Her responsibili-
ties in this position consisted of developing statewide
health programs, writing guidelines and protocols for
statewide programs, doing trainings and on-site visits,
contract management, and grant writing and monitor-
ing. She further testified that through her work with
the department, she did not treat patients. She conceded
that none of her work at the department involved clini-
cal care nursing, which she had not done since 1995,
when she was a nursing supervisor at a convalescent
home.
She also testified in her deposition that in addition to
her job with the department, she was the chief executive
officer, and sole employee, of Apex Medical Legal Con-
sulting (Apex). Through her work at Apex, she reviewed
medical records, and provided summaries, translation,
and interpretation of those records. She did not testify,
however, that she provided nursing services through
her work with Apex. Maselli further testified that she
also worked as an independent private duty nurse, and
estimated that she worked an average of twenty hours
per week in that capacity. She testified that she usually
provided these services for family and friends and often
did not charge for her services. In this capacity, she
did not ‘‘do medications or treatments, the hospital
staff [did] that’’ but provided ‘‘basic nursing care, fluids,
ambulating, assessing, [and] deep breathing.’’ She did
not testify, however, that she provided any of these
services under the direction of a licensed physician or
advanced practice registered nurse. She also testified
that she did not routinely place Foley catheters in her
work, and, in fact, the last time she had placed a Foley
catheter was in the 1980s, when she last worked in
a hospital.
Prior to the start of trial, the defendant filed a motion
in limine to preclude Maselli from testifying at trial on
the grounds that she was not qualified as a ‘‘similar
health care provider’’ to Meltzer, a clinical care nurse,
pursuant to General Statutes § 52-184c (b)5 and, there-
fore, she was ‘‘not qualified to offer opinions related
to the standard of care applicable to a registered nurse
inserting a Foley catheter on February 4, 2010.’’6 In
support of this contention, the defendant argued that
Maselli’s testimony should be precluded because she
was a nonspecialist, and, therefore, was subject to the
five year provision of § 52-184c (b), which she could
not satisfy because she lacked ‘‘active involvement in
the practice or teaching of [nursing] within the five
year period before’’ the plaintiff’s knee surgery. The
defendant further argued that Maselli did not qualify as
an expert witness under the catch-all provision of § 52-
184c (d)7 because the same five year rule applied.
The court orally granted the defendant’s motion on
February 20, 2015, after the trial had started, and pre-
cluded Maselli’s testimony pursuant to § 52-184c (b)
and (d). In so doing, the court cited Maselli’s deposition
testimony regarding her employment history and stated:
‘‘The court concludes that pursuant to [§ 52-184c (b)
(2)] Maselli lacks active involvement in the practice or
teaching of nursing within the five year period before
February [4], 2010.’’ It went on to state: ‘‘Since the court
has concluded that Maselli is not a similar health care
provider under subsection (b), the court must deter-
mine whether under [subsection] (d) she possesses suf-
ficient training, experience and knowledge as a result
of practice or teaching in a related field of nursing so
as to be able to provide such expert testimony as to
the prevailing standard of care in a given field of nurs-
ing. Such training, experience or knowledge shall be as
a result of the active involvement in the practice or
teaching of nursing within the five year period before
the incident giving rise to the claim. Again, the court
concludes based upon a careful review of Maselli’s
deposition testimony regarding her qualifications, that
she lacks the required active involvement in the [prac-
tice] or teaching of nursing within the five year period
before the incident giving rise to the claim. Accordingly,
her testimony is also precluded under § 52-184c (d).’’
Additionally, the court issued a written memorandum
of decision on February 24, 2015, and reiterated its
granting of the defendant’s motion to preclude Maselli’s
testimony. In so doing, the court stated: ‘‘In her deposi-
tion testimony, Maselli conceded that none of her work
at [the department] involves clinical nursing care. The
last time Maselli’s job involved clinical patient care was
in 1995, when she was a nursing supervisor at a conva-
lescent home. In addition, Maselli has not worked in a
hospital setting since the 1980s. Maselli testified that
the last time she placed a Foley catheter was ‘when I
was working in the hospital, probably in—in—probably
in the ’80s, at some point.’ . . . Maselli also testified
that she provides independent private duty nursing ser-
vices to family and friends, but she admitted that this
work does not include the insertion of Foley catheters.
Although there was some testimony from Maselli that
she works private duty twenty hours per week, she
later testified that her hours varied and that she worked
twenty-four hours in the month of October, 2014. In
addition, there is no indication that her private duty
work included the insertion of Foley catheters.’’
After the court precluded Maselli’s testimony, the
plaintiff rested. The defendant moved for a directed
verdict ‘‘based on the [plaintiff’s] inability to meet any
of the elements of a medical malpractice case.’’ The
court granted the motion and directed a verdict in favor
of the defendant, stating: ‘‘Based on the court’s ruling
. . . with respect to . . . Maselli as the standard of
care expert which is . . . a required element and pre-
cluding her testimony, the court will grant the directed
verdict.’’8 This appeal followed.
I
The plaintiff first claims that the court erred in pre-
cluding Maselli’s testimony. Specifically, the plaintiff
claims that Maselli’s testimony satisfied the statutory
criteria for expert testimony regarding the standard of
care in a medical malpractice action, and, therefore,
she should have been allowed to testify as an expert
witness. In support of this contention, he argues that
‘‘a registered nurse working in a Hospital operating
room is no different [than] a registered nurse doing
home care or working for [the department], as Nurse
Maselli has done for twenty (20) years.’’ He further
argues that ‘‘the act of catheterization is within the
scope of duties of a registered nurse, [and] all that
should be required of expert testimony as to the proper
insertion of a catheter is that they are a licensed, regis-
tered nurse, that they have practiced nursing within the
previous five (5) years.’’ The plaintiff argues that by
deciding the way it did, the court, in effect, has ‘‘created
a subclassification of nurses not contemplated by the
legislature [or] the appropriate licensure authorities.’’
In turn, the defendant argues that the court’s preclusion
of Maselli’s testimony was proper because she was not
a similar health care provider pursuant to § 52-184c.9
We agree with the defendant.
We first set forth our standard of review and the
applicable legal principles, relevant to this claim. ‘‘The
decision to preclude a party from introducing expert
testimony is within the discretion of the trial court.
. . . On appeal, that decision is subject only to the
test of abuse of discretion.’’ (Citation omitted; internal
quotation marks omitted.) Wright v. Hutt, 50 Conn.
App. 439, 451, 718 A.2d 969, cert. denied, 247 Conn.
939, 723 A.2d 320 (1998). ‘‘[T]he testimony of an expert
witness is necessary to establish both the standard of
proper professional skill or care . . . and that the
defendant failed to conform to that standard of care.’’
(Citation omitted; internal quotation marks omitted.)
Campbell v. Palmer, 20 Conn. App. 544, 548, 568 A.2d
1064 (1990). ‘‘In order to render an expert opinion, the
witness must be qualified to do so and there must be a
factual basis for the opinion.’’ (Internal quotation marks
omitted.) Peatie v. Wal-Mart Stores, Inc., 112 Conn.
App. 8, 20, 961 A.2d 1016 (2009). ‘‘The standard of care
required to be established and the qualifications of
expert witnesses who may testify to establish that stan-
dard, in claims for damages alleged to have been caused
by the negligence of a health care provider, are con-
trolled by . . . § 52-184c. Whether a witness is quali-
fied to testify as an expert is a matter that rests in
the sound discretion of the trial court. . . . We have
consistently held that the trial court’s exercise of that
discretion will not be disturbed unless it has been
abused or the error is clear and involves a misconcep-
tion of the law.’’ (Citation omitted; internal quotation
marks omitted.) Rodriguez v. Petrilli, 34 Conn. App.
871, 875–76, 644 A.2d 381 (1994).
‘‘[T]he test for admissibility of expert testimony
involves, inter alia, a determination as to whether the
witness has a special skill or knowledge directly appli-
cable to a matter in issue . . . .’’ (Emphasis in original;
internal quotation marks omitted.) Sherman v. Bristol
Hospital, Inc., 79 Conn. App. 78, 85, 828 A.2d 1260
(2003); see also Hayes v. Decker, 263 Conn. 677, 683, 822
A.2d 228 (2003) (‘‘[e]xpert testimony should be admitted
when: [1] the witness has a special skill or knowledge
directly applicable to a matter in issue, [2] that skill or
knowledge is not common to the average person, and
[3] the testimony would be helpful to the court or jury
in considering the issues’’ [internal quotation marks
omitted]); Siladi v. McNamara, 164 Conn. 510, 513, 325
A.2d 227 (1973) (‘‘Generally, expert testimony may be
admitted if the witness has a special skill or knowledge,
beyond the ken of the average juror, that, as properly
applied, would be helpful to the determination of an
ultimate issue. . . . The special skill or knowledge,
however, must be directly applicable to the matter spe-
cifically in issue.’’ [Citation omitted.]).
Additionally, in medical malpractice cases specifi-
cally, ‘‘[a] trial court evaluating a prospective expert’s
qualifications to testify in a medical malpractice action
must either decide that the expert is either a similar
health care provider as defined by subsections (b) or
(c) of § 52-184c, or make a discretionary determination
[pursuant to § 52-184c (d)] that, to the satisfaction of
the court, [the expert] possesses sufficient training,
experience and knowledge as a result of the 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 medi-
cine. 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.’’ (Emphasis in
original; internal quotation marks omitted.) Bennett v.
New Milford Hospital, Inc., 300 Conn. 1, 15, 12 A.3d
865 (2011).
‘‘Section 52-184c sets forth four distinct, yet closely
intertwined subsections. Section 52-184c (a) requires
the plaintiff to prove, by a preponderance of the evi-
dence, that the defendant breached the ‘prevailing pro-
fessional standard of care for that health care provider.
. . .’ That subsection then defines the ‘prevailing profes-
sional standard of care for a given health care provider
[as] 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.’ ’’ (Emphasis in original;
footnote omitted.) Grondin v. Curi, 262 Conn. 637, 650,
817 A.2d 61 (2003). ‘‘To testify as an expert, the health
care provider must qualify as a similar health care pro-
vider under subsection (b) or (c), or, if he is not a
similar health care provider, must satisfy the court
under subsection (d) that he has sufficient training,
practice, and knowledge including practice or teaching
within the five-year period to qualify.’’ (Internal quota-
tion marks omitted.) DiLieto v. County Obstetrics &
Gynecology Group, P.C., 265 Conn. 79, 95, 828 A.2d
31 (2003).
The statute defines ‘‘similar health care provider’’ in
two ways, depending on whether the defendant health
care provider is a specialist or a nonspecialist. For spe-
cialists, a similar health care provider is defined by § 52-
184c (c)10 as someone who ‘‘(1) is trained and experi-
enced in the same specialty; and (2) is certified by the
appropriate American board in the same specialty.’’ For
nonspecialists, a similar health care provider is defined
by § 52-184c (b) as someone who ‘‘(1) is licensed by the
appropriate regulatory agency of this state . . . and (2)
is trained and experienced in the same discipline or
school of practice and such training and experience
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.’’
Section 52-184c (d) provides a ‘‘catch all’’ provision for
experts who do not qualify as a ‘‘similar health care
provider’’ under subsection (b) or (c). Under subsection
(d) (2), a health care provider may testify if she ‘‘pos-
sesses 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 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.’’ (Emphasis added.) General Statutes § 52-184c
(d) (2).
The court here analyzed Maselli’s qualifications to
testify under the nonspecialist standard pursuant to
§ 52-184c (b). Absent evidence of specialized training,
registered nurses are considered nonspecialists under
§ 52-184c (b). Bell v. Hospital of Saint Raphael, 133
Conn. App. 548, 560, 36 A.3d 297 (2012) (registered
nurse with bachelor of science in nursing treated as
nonspecialist under § 52-184c [b]; because opinion let-
ter did not represent that the nurse ‘‘had been trained
and experienced in any specialty or had been certified
by an American board as a specialist,’’ she did not qual-
ify as specialist pursuant to § 52-184c [c]). Here, there
is no evidence of, nor does the plaintiff argue, that
Maselli should be considered a specialist for purposes
of § 52-184c (c),11 nor is there any evidence that Meltzer
was considered a specialist. Therefore, for purposes of
being a ‘‘similar health care provider’’ to Meltzer, Maselli
is considered a nonspecialist, and her qualifications to
testify are analyzed under § 52-184c (b). There is no
dispute that Maselli satisfies the first prong of the non-
specialist test, that she is ‘‘licensed by the appropriate
regulatory agency of this state.’’ The issue, therefore,
is whether she was ‘‘trained and experienced in the
same discipline or school of practice’’ as Meltzer, and
whether such training and experience was ‘‘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.’’ General Statutes § 52-184c
(b) (2).
The court determined that Maselli was not a similar
health care provider pursuant to § 52-184c (b) (2) not
because she was not trained or experienced in the same
discipline or school of practice, but because she lacked
‘‘active involvement in the practice or teaching or [nurs-
ing] within the five-year period before [February 4,
2010].’’ In so doing, it highlighted the facts from Maselli’s
deposition testimony that she was not involved with
‘‘clinical care nursing,’’ had not provided ‘‘clinical
patient care’’ since 1995, had not worked in a hospital
since the 1980s, and had not placed a Foley catheter
since her time working in the hospital. The court also
highlighted as instructive the fact that Maselli’s testi-
mony was precluded in a previous case because the
court in that case, S. Richards, J., found that her
employment as an ‘‘independent medical-legal nurse
consultant’’ and ‘‘private duty nurse’’ did not qualify her
to testify as a similar health care provider to a practicing
nurse employed by a hospital. See Patenaude v. Nor-
walk Hospital, Superior Court, judicial district of Fair-
field, Docket No. CV-11-6022949-S (September 12,
2012). The court in the present case went on to state:
‘‘[A]fter carefully reviewing Maselli’s deposition testi-
mony regarding her qualifications, the court concludes
that she does not qualify as a similar health care pro-
vider under § 52-184c (b) to offer expert opinions on
the standard of care for a registered nurse inserting a
preoperative Foley catheter in February 2010.’’
Since the court determined that Maselli did not satisfy
the requirements of being a ‘‘similar health care pro-
vider’’ pursuant to § 52-184c (b), it then turned to the
residual provision of § 52-184c, subsection (d), to deter-
mine whether Maselli was qualified to testify as an
expert pursuant to that section. The court, in its written
memorandum of decision, stated: ‘‘Since the court has
concluded that Maselli is not a similar health care pro-
vider under subsection (b), the court must determine
whether under (d) she ‘possesses sufficient training,
experience and knowledge as a result of practice or
teaching in a related field of [nursing] so as to be able
to provide such expert testimony as to the prevailing
professional standard of care in a given field of [nurs-
ing]. Such training, experience or knowledge shall be
as a result of the active involvement in the practice or
teaching of [nursing] within the five-year period before
the incident giving rise to the claim.’ Again, the court
concludes that based upon a careful review of Maselli’s
deposition testimony regarding her qualifications, that
she lacks the required active involvement in the practic-
ing or teaching of nursing within the five year period
before the incident giving rise to the claim. Accordingly,
her testimony is also precluded under § 52-184c (d).’’
We conclude that it was not an abuse of discretion
for the trial court to find that Maselli’s deposition testi-
mony did not support a determination that she was a
‘‘similar health care provider’’ to Meltzer pursuant to
§ 52-184c (b), nor that she was qualified to testify under
the residual provision of § 52-184c (d). Though Meltzer
and Maselli both were trained as registered nurses,
Maselli was no longer involved with the type of ‘‘clinical
care nursing’’ that Meltzer practiced in the hospital set-
ting, and Maselli had not done so for far more than the
five years prior to February 4, 2010. Additionally, while
we note that Maselli testified that she had been provid-
ing some private duty nursing during the five years prior
to February 4, 2010, she testified that she provided only
‘‘basic nursing care, fluids, ambulating, assessing, [and]
deep breathing,’’ but did not ‘‘do medications or treat-
ments’’ because ‘‘the hospital staff [did] that,’’ nor did
she place preoperative Foley catheters. Additionally,
we note that Maselli never testified that she provided
any of this private duty nursing care under the ‘‘direc-
tion of a licensed physician . . . or advanced practice
registered nurse’’ which is required by the definition of
‘‘the practice of nursing by a registered nurse,’’ pursuant
to General Statutes § 20-87a (a).12
After a careful review of the record, none of Maselli’s
training and experience seems to suggest that she was
actively involved in the practice or teaching of nursing
in the five year period prior to February 4, 2010. There-
fore, the trial court did not abuse its discretion in
determining that she did not satisfy the qualifications
to be considered a ‘‘similar health care provider’’ for
nonspecialists, pursuant to § 52-184c (b), nor does she
satisfy the requirements of the residual provision, pur-
suant to § 52-184c (d).
We conclude, on the basis of the record, that the trial
court did not abuse its discretion in precluding Maselli’s
testimony. This finding by the trial court, that Maselli
did not fit the statutory requirements to testify as an
expert witness and, therefore, was not qualified to pro-
vide expert testimony, is supported adequately by the
record and, in light of the foregoing, the exclusion of
Maselli’s testimony on that basis was not an abuse of
discretion.
II
The plaintiff also claims that the court erred in grant-
ing the defendant’s motion for a directed verdict
because its decision was based on the erroneous preclu-
sion of Maselli’s testimony. We disagree.
‘‘We review a trial court’s decision to direct a verdict
for the defendant by considering all of the evidence,
including reasonable inferences, in the light most favor-
able to the plaintiff. . . . A verdict may be directed
where the decisive question is one of law or where the
claim is that there is insufficient evidence to sustain a
favorable verdict.’’ (Internal quotation marks omitted.)
Silano v. Cumberland Farms, Inc., 85 Conn. App. 450,
453, 857 A.3d 439 (2004).
In order to 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 devia-
tion and the claimed injury.’’ (Internal quotation marks
omitted.) Carrano v. Yale-New Haven Hospital, 279
Conn. 622, 656, 904 A.2d 149 (2006). ‘‘[E]xpert testimony
is required to establish the standard of professional
care to which the defendant is held . . . .’’ Mather v.
Griffin Hospital, 207 Conn. 125, 131, 540 A.2d 666
(1988). ‘‘A court should direct a verdict if, on the evi-
dence, the jury reasonably and legally could not have
reached any other conclusion. . . . A directed verdict
is justified if the plaintiff fails to present any evidence
as to a necessary element of his or her cause of action.’’
(Citation omitted.) Poulin v. Yasner, 64 Conn. App. 730,
734–35, 781 A.2d 422, cert. denied, 258 Conn. 911, 782
A.2d 1245 (2001).
We conclude that the court properly precluded the
plaintiff’s sole standard of care expert witness, Maselli,
from testifying. Accordingly, the granting of the defen-
dant’s motion for a directed verdict was proper.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff brought three other claims on appeal. He argues that the
court erred in: (1) failing to order sua sponte that his complaint be amended
in light of a new scheduling order; (2) precluding the causation testimony
of expert witness Dr. Joseph Camilleri, a urologist who treated the plaintiff
six weeks after his knee surgery; and (3) denying the plaintiff’s motion to
limit the testimony of Dr. Richard Pelker, the surgeon who performed the
plaintiff’s knee surgery. Because we affirm the court’s granting of the defen-
dant’s motion for a directed verdict based on the plaintiff’s lack of standard
of care expert testimony, we need not address these claims.
2
The plaintiff originally brought this action against the defendant hospital
and Meltzer as codefendants but he later withdrew count two against Meltzer.
Hereafter, we refer in this opinion to Yale-New Haven Hospital, Inc., as
the defendant.
3
A Foley catheter is a flexible tube that is inserted into the tip of the
penis, through the urethra and into the bladder in order to drain urine.
4
The plaintiff also alleged that the defendant: ‘‘[F]ailed to hire or retain
appropriately trained Registered Nurses’’; ‘‘failed to adequately supervise
their Registered Nurses’’; ‘‘appointed and/or hired Registered Nurses not
qualified, experienced and/or with the background to insert a Foley catheter
as part of preoperative care plan’’; ‘‘failed [by and through its agents, servants
and/or employees] to follow nursing protocol for insertion of a Foley cathe-
ter’’; ‘‘failed [by and through its employees] to order and/or request a urology
consult in the perioperative period’’; ‘‘failed [by and through its employees]
to request assistance from other RNs, APRNs, Residents, and/or physicians
to insert the Foley catheter upon encountering resistance’’; ‘‘failed to ade-
quately require certification and recertification to perform Foley catheteriza-
tions’’; ‘‘failed to have adequate staffing of supervisors, APRNs, residents, or
attending physicians’’; and ‘‘failed to install or maintain a chain of command
protocol adequate to assist [Meltzer] in the event of complications in the
insertion of a Foley catheter.’’
5
General Statutes § 52-184c (b) provides: ‘‘If the defendant health care
provider is not certified by the appropriate American board as being a
specialist, is not trained and experienced in a medical specialty, or does
not hold himself out as a specialist, a ‘similar health care provider’ is one
who: (1) Is licensed by the appropriate regulatory agency of this state or
another state requiring the same or greater qualifications; and (2) is trained
and experienced in the same discipline or school of practice and such
training and experience shall be 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.’’
6
The defendant moved to preclude Maselli’s testimony on the alternative
ground that her testimony was ‘‘speculative, without factual basis, and inad-
missible under § 7-4 (a) of the Code of Evidence and State v. Porter, 241
Conn. 57, [698 A.2d 739] (1997).’’ The court precluded her testimony on the
grounds that she was not a similar health care provider and, therefore, did
not address this argument.
7
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 involve-
ment in the practice or teaching of medicine within the five-year period
before the incident giving rise to the claim.’’
8
The court granted the defendant’s motion for a directed verdict based
on the preclusion of both of the plaintiff’s expert witnesses, Camilleri and
Maselli. Because Maselli was the only witness disclosed to testify on the
element of standard of care, her preclusion was dispositive.
9
The defendant argues that even if Maselli had qualified as a similar health
care provider, her testimony still should have been precluded because it
lacked factual foundation, and was speculative and unreliable pursuant to
State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997). Because we find that the
court did not abuse its discretion in precluding Maselli’s testimony pursuant
to § 52-184c, we need not reach this alternative claim.
10
General Statutes § 52-184c (c) provides: ‘‘If the defendant health care
provider is certified by the appropriate American board as a specialist, is
trained and experienced in a medical specialty, or holds himself out as a
specialist, a ‘similar health care provider’ is one who: (1) Is trained and
experienced in the same specialty; and (2) is certified by the appropriate
American board in the same specialty; provided if the defendant health care
provider is providing treatment or diagnosis for a condition which is not
within his specialty, a specialist trained in the treatment or diagnosis for
that condition shall be considered a ‘similar health care provider.’ ’’
11
Maselli testified in her deposition that she was not an expert in urology,
and that she did not have any specialized training or certifications in urology.
12
General Statutes § 20-87a (a) provides: ‘‘The practice of nursing by a
registered nurse is defined as the process of diagnosing human responses
to actual or potential health problems, providing supporting and restorative
care, health counseling and teaching, case finding and referral, collaborating
in the implementation of the total health care regimen, and executing the
medical regiment under the direction of a licensed physical, dentist or
advanced practice registered nurse. A registered nurse may also execute
orders issued by licensed physician assistants, podiatrists and optometrists,
provided such orders do not exceed the nurse’s or the ordering practitioner’s
scope of practice. A registered nurse may execute dietary orders written in
a patient’s chart by a certified dietitian-nutritionist.’’ (Emphasis added.)