Preview:

****************************************************** The ``officially released'' date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ``officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ``officially released'' date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ******************************************************

ANTHONY D. BOONE, ADMINISTRATOR (ESTATE OF KYLE KALIK BOONE), ET AL. v. WILLIAM W. BACKUS HOSPITAL ET AL. (SC 17204)
Sullivan, C. J., and Katz, Palmer, Vertefeuille and Leheny, Js. Argued October 26, 2004--officially released January 25, 2005

Joseph A. Moniz, for the appellants (plaintiffs). Jeffrey F. Buebendorf, for the appellee (named defendant).

Opinion

SULLIVAN, C. J. This appeal arises from the tragic death of a four year old child following his treatment for an earache. The plaintiff, Anthony D. Boone, on his own behalf and as administrator of the estate of his son Kyle Kalik Boone, appeals from the judgment of the trial court rendering summary judgment in favor of the named defendant, William W. Backus Hospital. The plaintiff claims on appeal that the trial court improperly determined that his claims alleging negligence and recklessness were, in fact, claims alleging medical malpractice and, therefore, that he was required to present expert testimony to establish proximate causation. We disagree and affirm the judgment of the trial court. The record reveals the following facts and procedural history relevant to this appeal. On December 22, 1999, at approximately 5:30 p.m., Heidi Hansen brought her four year old son, the plaintiff's decedent (decedent), to the defendant hospital because he was complaining of pain in his right ear and she observed pus oozing from the ear. A physician at the hospital diagnosed the decedent with ``right purulent otitis media'' and treated him with two fifty milligram injections of Rocephin IM, an antibiotic, and a teaspoon of Tylenol with Codeine Elixir, a pain reliever. After receiving this medication, the decedent vomited, began to sweat, and his complexion turned white. A hospital nurse informed Hansen that the symptoms were caused by the injections, but that it was safe to take him home. While Hansen and the decedent were outside waiting for a taxicab, he began to vomit violently. Hansen brought the decedent back inside the hospital and sought medical assistance. A hospital nurse gave Hansen a basin and a washcloth, informed her that nothing more could be done, and instructed them to leave the hospital immediately. Hansen brought the decedent back outside, where he continued to vomit violently and was unable to stand upright. At the insistence of a taxicab driver, Hansen brought the decedent back inside the hospital for medical assistance. A hospital nurse instructed them to leave three times and threatened to call security if they did not do so. Hansen and the decedent left the hospital, arriving home at approximately 9:30 p.m. By the time the decedent arrived home, he was sweating, disoriented, breathing shallowly, his muscles were limp, and he had to use the bathroom but was unable to sit upon the toilet by himself. At 9:35 p.m., the plaintiff called the hospital and reported that the decedent was vomiting, had diarrhea, and was violently ill. The hospital responded that these symptoms were caused by the medication and advised the plaintiff to lay him down in bed. The plaintiff followed the hospital's instructions, but at this point the decedent's hands were clenched, he was not breathing well, and his lips and gums were white. The plaintiff and Hansen brought the decedent

back to the hospital, arriving at 11:15 p.m. At 11:24 p.m., the decedent was lethargic and did not respond to verbal commands. On December 23, 1999, at 12:10 a.m., in an attempt to revive the decedent, hospital personnel administered various medications to him and began cardiopulmonary resuscitation. These measures were unsuccessful and, at 2:44 a.m., the decedent was pronounced dead. An autopsy revealed that the cause of his death was `` `hemolysis due to [an] idiosyncratic reaction to Ceftriaxone.' '' On June 25, 2001, the plaintiff commenced the present action against the defendant. He subsequently filed an amended complaint1 that alleged, in the first count, that the defendant was negligent in one or more of the following ways: (1) hiring and/or retention of its staff; (2) failing to provide adequate supervision and training of its staff; (3) failing to adequately train, educate or instruct its staff to recognize a severe allergic reaction to medication; (4) failing to warn its staff about the risks and dangers of allergic reactions; (5) failing to provide adequate and proper medical treatment; and (6) failing to respond adequately to the emergency presented on December 22, 1999, when Hansen returned to the hospital twice seeking assistance for the decedent and insisting that she leave despite his worsening condition. In the second count of the complaint, the plaintiff alleged that the defendant was reckless in one or more of the following ways: (1) failing to provide medical treatment; (2) failing to respond adequately to the emergency presented on December 22, 1999, when Hansen returned to the hospital twice seeking assistance for the decedent and insisting that they leave while his condition deteriorated; and (3) failing to consult with a physician before insisting that Hansen and the decedent leave and threatening to call security. On August 29, 2002, the trial court entered a scheduling order that required the plaintiff to disclose any expert witnesses on or before October 26, 2002. On December 5, 2002, the plaintiff had not yet disclosed any expert witnesses and, accordingly, the defendant filed a motion to preclude future disclosures to prevent possible prejudice and delay. On March 3, 2003, the trial court granted the defendant's motion and foreclosed the plaintiff from offering expert testimony in support of his claims. The defendant then filed a motion for summary judgment, arguing that the plaintiff's complaint alleged a medical malpractice claim and that, because the plaintiff would be required to present expert testimony to prevail upon such a claim but now was precluded from doing so, no genuine issue of material fact existed. In response to the defendant's motion for summary judgment, the plaintiff submitted the following documents to the trial court to support his recklessness and negligence claims: (1) the defendant's ``Emergency Department Discharge Instructions'' instructing the

decedent to return to the hospital if he felt that his ``condition [was] not improving (and especially if it [was] worsening)''; (2) a page of an autopsy report indicating that the final cause of the decedent's death was ``hemolysis due to [an] idiosyncratic reaction to Ceftriaxone''; (3) a printout from an Internet website entitled  ``RxList'' describing Rocephin as ``ROCEPHIN (ceftriaxone sodium) FOR INJECTION''; (4) a printout from the same website detailing ``warnings'' and ``precautions'' for the use of Rocephin;2 (5) a printout from the website listing the side effects of Rocephin; and (6) one page of the defendant's medical records for the decedent indicating his allergy to sulfa drugs and penicillin. On September 26, 2003, the trial court issued a memorandum of decision granting the defendant's motion for summary judgment. The trial court concluded that the plaintiff's claims sounded in medical malpractice because (1) the defendant was sued in its capacity as a provider of emergency medical services, (2) the alleged negligence was of a specialized medical nature arising out of the medical professional relationship, and (3) the alleged negligence was substantially related to medical diagnoses or treatment and involved the exercise of medical judgment. The trial court recognized that, to prevail in a medical malpractice claim, the plaintiff must prove, ordinarily through expert testimony: ``(1) the requisite standard of care, (2) a deviation from the standard of care and (3) a causal connection between the deviation and the claimed injury.'' The court held that, while expert testimony might not be necessary to establish the defendant's negligence under these circumstances, such testimony would be necessary to establish causation because the average layperson could not ``equate `hemolysis' in the autopsy report with `pseudomembranous colitis' in the Internet materials''3 and could not determine, ``without the aid of expert testimony that if the child had been accepted back in the emergency room earlier and treated that the tragedy which resulted would not have occurred.'' Accordingly, the trial court rendered summary judgment in favor of the defendant. The plaintiff appealed from the trial court's judgment to the Appellate Court and we transferred the appeal to this court pursuant to General Statutes

Download 272CR26.pdf

Connecticut Law