Opinion
No. FST CV 06 5002768
December 18, 2009
MEMORANDUM OF DECISION
This is an action sounding in medical malpractice brought by the plaintiff, Nancy Kehle, administratrix of the estate of Theodore A. Kehle and Nancy Kehle, individually, against the defendant, Rudy T. Andriani, M.D. (defendant). The essence of the plaintiff's allegation is that the defendant deviated from the standard of care in failing to properly treat and diagnose bladder cancer. The operative complaint in this matter is the plaintiff's five-count amended complaint dated April 4, 2008. Count one seeks recovery for common-law negligence for medical malpractice. Court two sets forth a claim for loss of chance. Count three alleges common-law loss of consortium. Count four alleges wrongful death pursuant to General Statutes § 52-555. Count five sets forth a cause of action for statutory loss of consortium pursuant to General Statutes § 52-555a.
Although Nancy Kehle is a party in both a representstive.and individual capacity, this memorandum will refer to her as "the plaintiff" because she is, in fact, only one person.
A court trial in this matter commenced on February 19, 2009, and concluded on August 26, 2009. Both parties were represented by counsel. At trial, the court heard testimony from members of the decedent's family including his wife, Nancy Kohl; and their two children, Lisa and Theodore. The court also heard testimony from the plaintiff's experts, Joseph Davis, M.D. and Robert Gelfand, M.D., as well as the defendant's experts, Michael Droller, M.D. and Michael Grasso, M.D. Additionally, the defendant, Rudy Andriani, M.D. provided testimony. Subsequently, each party submitted post-trial briefs regarding their respective positions.
I. FINDINGS OF FACT
"In a bench trial . . . the court sits as the trier of fact . . ." (Internal quotation marks omitted,) Knock v. Knock, 224 Conn, 776, 793, 621 A.2d 267 (1993). The court makes the following findings of fact.
The plaintiff's decedent, Theodore A. Keble (decedent), was born on October 12, 1936. The decedent first began treatment with the defendant, Rudy T. Andriani, M.D., in December 1989. The decedent's internist had referred him to the defendant, a urologist, for treatment of significant urinary symptoms including urinary frequency, urgent incontinence and an enlarged prostate. The decedent had a family history of prostate cancer and smoked approximately two packs of cigarettes per day. The decedent did not have a history of bladder cancer. During the course of his treatment the decedent was advised that smoking increased his risk of heart attack, lung cancer and bladder cancer.
At his initial visit in 1989, the defendant diagnosed the decedent with benign prostatic hypertrophy (BPH) which was using post-void residual resulting in urinary urgency and frequency. To treat the problem the decedent underwent a transurethral resection of the prostate (TURP).
"BPH" is an enlarged prostate.
The performance of a TURP involves carving out part of the prostate gland so as to improve the patient's urine flow.
In March and April of 1990, urinalysis revealed microhematuria in the decedent's urine which the defendant opined was consistent with a urinary tract infection (UTI). The defendant prescribed Noroxin, an antibiotic, to treat the condition. Subsequently, in 1990, the defendant scoped the decedent's prostate to remove prostatic calculi that had developed.
Microhematuria are microscopic red blood cells.
Thereafter, into the 1990s and beyond, the defendant continued to follow the decedent for prostate symptoms and generally monitored his overall urologic health. As part of this treatment, the defendant periodically ordered certain laboratory tests. Among these tests was one specifically designed to monitor the decedent's prostate gland for signs of cancer and involved measuring the decedent's prostate specific antigen levels (PSA), which serve as an important marker for possible prostate cancer when elevated. The decedent's urological condition appears to have been largely unremarkable throughout the 1990s. The defendant also conducted periodic urinalyses which were negative, for findings of microhematuria. Gradually in the late 1990s, however, the decedent began to redevelop symptoms of prostate enlargement, including an inability to fully empty his bladder. As much as 40 percent of the decedent's bladder was not emptying when he voided. This put the decedent at an increased risk of developing frequent UTIs.
In November of 2000, the decedent had an increase in his PSA level to 4.0. Urinalysis disclosed the presence of white blood cells. On digital examination the defendant found that the prostate was enlarged and noted that it was "2+ boggy." The defendant felt this suggested an inflammation of the prostate and possible infection. The defendant's impression at the time was that the increased PSA level was due to a UTI. He prescribed an antibiotic, Cipro, to treat the decedent's infection.
"Boggy" is a medical term used to denote how the prostate feels on digital examination.
Following the use of Cipro in December 2000, the patient's PSA level decreased, however, there was a presence of some microhematuria on urinalysis. To treat the problem, the defendant prescribed Bactrim, another antibiotic. In January 2001, and February 2001, the decedent's PSA level had once again risen to 4.0. In February 2001, the decedent underwent a transrectal ultrasound and biopsies were done which were negative for malignancy. The decedent's PSA level decreased to 3.2 by September 12, 2001. The decedent also had a negative urinalysis and negative urine cytology at that time. The defendant's impression was that the decedent's PSA level had re-stabilized consistent with BPH.
In March 2002, the decedent's PSA level was 3.6. In September and December 2002, the decedent's urinary cytology was negative for malignant cells, however, atypical bladder cells were found. Urinalysis at this time showed some microhematuria. In December 2002, atypical bladder cells and red blood cells were again found in urinary cytology. On May 29, 2003, the decedent was seen by the defendant, at which time he had an elevated PSA level of 4.6. The decedent's urinary cytology was negative for malignancy, however, it was positive for atypical bladder cells. In view of the prior negative prostate biopsies and the markedly elevated PSA of 4.6, the decedent was prescribed Levaquin, an antibiotic. The defendant further ordered a follow-up PSA test and a follow-up visit in three weeks. It was the defendant's opinion that the elevation of the decedent's PSA level was due to infection, despite a negative urinalysis, since an infection can develop deep in the prostate gland. At the follow-up visit on July 15, 2003, the decedent's PSA level had decreased to 3.3, although urinalysis was positive for microhematuria on dip stick analysis. Additionally, the decedent's prostate gland was noted on digital examination to be slightly boggy.
A "urine cytology" is a test designed to look for signs of malignant cells in the urine.
On October 9, 2003, the decedent telephoned the defendant complaining of a bladder infection for which the defendant called in a prescription of Cipro. On October 20, 2003, another telephone message from the decedent informed the defendant that he had finished the Cipro, but that he still had burning on urination. The defendant then switched antibiotics and prescribed Doryx. The decedent remained symptom free for many months thereafter.
The next time the decedent was seen was on January 20, 2004, when the decedent presented to the defendant with complaints of a UTI. A urinalysis ordered by the defendant at that appointment revealed atypical cells and a large amount of microhematuria. The decedent's PSA at this time was 4.1. The defendant listed in the decedent's chart that this was due to a questionable UTI and he gave the decedent a prescription for Cipro. Prior to the office visit, urine cytologies were taken on January 8 and January 17, 2004, which were negative for malignant cells but revealed the presence of atypical cells. On February 21, 2004 tests results proved positive for atypical cells and microhematuria.
The decedent returned to the defendant on February 26, 2004. As of that date, the decedent's prostate was found to be slightly boggy. The decedent's urinalysis was negative for microhematuria at this visit. On March 27, 2004, the decedent's PSA level had dropped to 3.7. On July 27, 2004, the decedent telephoned the defendant saying that he needed antibiotics for the "same problem." The defendant once again prescribed Cipro.
The decedent had an appointment scheduled with the defendant on August 12, 2004, which was rescheduled to September 28, 2004, at the decedent's request. A urine culture was performed on September 3, 2004, which was negative and the decedent's urinalysis in September 2004, was negative as well. Due to the decedent's complaint of nocturia, waking at night to urinate, the defendant prescribed Flomax. This drug was intended to treat both symptoms of an enlarged prostate and to help alleviate the need to void at night after sleeping. The decedent was to return in six months. Throughout the course of this time period the defendant never performed a cystoscopy to visualize the decedent's bladder as ho believed that the symptoms were of prostatic origin and was satisfied with the decedent's response to the prescribed medications.
On February 17, 2005, the decedent telephoned the defendant complaining of visible blood in his urine. The decedent was advised to come to the office the next day, but was told to first undergo some laboratory work including a cytology. The cytology was reported as "cannot rule out transitional cell carcinoma." An ultrasound performed on February 18, 2005, revealed that the decedent's bladder wall was thickened. On March 31, 2005, the decedent underwent a cystoscopy during which the defendant saw a mass growing at the bladder neck between the 12 o'clock and 3 o'clock position. He noted a sessile appearance to the mass with papillary components. The defendant conducted a biopsy of the lining close to the mass to see if there was evidence of a carcinoma. Those biopsies were negative.
As of March 31, 2005, the defendant recommended that the decedent have a cystourethroscopy, during which the bladder tumor and part of the prostate would be resected. The decedent initially scheduled the procedure with the defendant, but he called on April 15, 2005, to cancel the procedure stating he would be treated at Yale-New Haven Hospital (Yale). Thereafter, the decedent treated with John Colberg, M.D. at Yale.
On April 21, 2005, Dr. Colberg performed a cystoscopy and a transurethral resection of the bladder tumor. Thereafter, Dr. Colberg diagnosed the decedent with bladder cancer. On May 9, 2005, the decedent underwent evaluation at Memorial Sloan-Kettering Hospital in New York to determine the nature of any further course of treatment. At that time a urine cytology was read as negative for malignant cells in spite of Dr. Colberg's diagnosis of bladder cancer. On June 3, 2005, the decedent underwent a radical cystoprostatectomy of the bladder, a procedure whereby the bladder and prostate are surgically removed. Additionally, an artificial neobladder was formed at that surgery. It was eventually determined that the decedent suffered from a high grade papillary carcinoma of the bladder with positive lymph nodes. In November of 2005, the decedent underwent a bone scan which was positive for metastatic disease. Despite undergoing a regimen of treatment thereafter, including chemotherapy and radiation therapy, on October 20, 2006, the decedent died as a result of the bladder cancer, which had spread to his lungs, brain and pelvis.
II. LEGAL ANALYSIS
"[M]alpractice . . . [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] . . . the failure to exercise requisite medical skill . . ." (Emphasis in original; internal quotation marks omitted.) Votre v. County Obstetrics Gynecology Group, 113 Conn.App. 569, 576, 966 A.2d 813 cert. denied, CT Page 1364 292 Conn. 911, 973 A.2d 661 (2009). The requisite standard of proof in a medical malpractice case is well settled. To prevail in an action seeking damages for medical malpractice the plaintiff must prove the three following elements: "(1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005). "Establishing the applicable standard of care in a given field of practice is essential to a medical malpractice claim." Costanzo v. Gray, 112 Conn.App. 614, 624, 963 A.2d 1039, cert. denied, 291 Conn. 905, 967 A.2d 1220 (2009). As such, expert testimony is generally required to establish both the standard of care to which the defendant is held and the breach of that standard. Distefano v. Milardo, 82 Conn.App. 838, 842, 847 A.2d 1034 (2004), aff'd., 276 Conn. 416, 886 A.2d 415 (2005); Gold v. Greenwich Hospital Ass'n., 262 Conn. 248, 255, 811 A.2d 1266 (2002).
In defining the standard of care we look to § 52-184c which specifies that, in order to establish medical negligence, a plaintiff must demonstrate that the defendant breached "the prevailing professional standard of care for that health care provider." General Statutes § 52-184c(a). Section 52-184c(a) provides further clarity as follows: "[t]he 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); Neuhaus v. Decholnoky, 280 Conn. 190, 222, 905 A.2d 1135 (2006).
As to the element of causation, "[t]he test for cause in fact is [w]ould the injury have occurred were it not for (the defendant's) negligent . . . conduct . . . Proximate cause is defined as [a]n actual cause that is a substantial factor in the resulting harm . . . The substantial factor test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence." (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 656, 904 A.2d 149 (2006).
In this case the plaintiff makes statutory and common-law claims of negligence. The legislature has defined the perimeters of claims for medical malpractice as documented in General Statutes § 52-184c(a) which provides in relevant pert: "(i)n any civil action to recover damages resulting from . . . wrongful death . . . in which it is alleged that such injury or death resulted from the negligence of a health care provider . . . 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."
At trial, the plaintiff relied, in part, upon testimony from two expert witnesses, Joseph Davis, M.D., a urologist, and Robert Gelfand, M.D., an oncologist and practicing internist.
The defendant also presented testimony from two experts, Michael Droller, M.D., a board certified urologist who also specializes in oncology and Michael Grasso, M.D., a urologist. None of the experts treated or examined the decedent but all reviewed his medical records in forming the basis of their opinions in this case.
"A doctor may give an opinion on a medical issue without having examined or treated the patient." (Internal quotation marks omitted.) Shelnitz v. Greenberg, supra, 200 Conn. 58, 67, 509 A.2d 1023 (1986).
III. THE PLAINTIFF'S CLAIMS Counts one and four:
In count one of the complaint, the plaintiff brings a common-law claim for medical negligence. Count four advances a claim for wrongful death pursuant to General Statutes § 52-555. The gravamen of the plaintiff's action is that the defendant failed to perform necessary testing, most significantly a cystoscopy, following incidents of urinary tract infections coupled with hematuria and cytologic atypia. Further, the plaintiff claims that such timely testing would have resulted in a diagnosis of bladder cancer during a period when medical intervention permitted recovery.
"The wrongful death statute; General Statutes § 52-555; is the sole basis upon which an action that includes as an element of damages a person's death or its consequences can be brought." Lynn v. Haybuster Manufacturing, Inc., 226 Conn. 282, 295, 627 A.2d 1288 (1993). Section 52-555 provides in relevant part: "[i]n any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses . . ."
Applying the previously noted essential elements of a cause of action for medical malpractice the plaintiff must prove by a preponderance of the evidence: "(1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury." (Internal quotation marks omitted.) Hayes v. Camel, 283 Conn. 475, 484, 927 A.2d 880 (2007). The plaintiff bears 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 in light of that level of care, skill and treatment recognized as appropriate by reasonably prudent similar health care providers. Russo v. Phoenix Internal Medicine Associates, P.C., 109 Conn.App. 80, 89, 950 A.2d 559 (2008).
1. Standard of Care
The court must initially address the question of whether the plaintiff has sustained her burden of proving that the defendant breached the prevailing professional standard of care in his treatment of the decedent. Generally, proof of the breach of a proper standard of medical care must be proven by way of expert testimony substantiating the established standard of proper professional standard of care on the part of a physician, surgeon or other similar practitioner, as in most such cases a layman does not possess the requisite knowledge as to whether the proper treatment was given. Moore v. Crone, 114 Conn.App. 443, 447, 970 A.2d 757 (2009); Shelnitz v. Greenberg, 200 Conn. 58, 66, 509 A.2d 1023 (1986).
General Statutes § 52-184c sets forth the standard of care in a negligence action against a health care provider and discusses the qualifications of an expert witness. Section 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 involvement in the practice or teaching of medicine within the five-year-period before the incident giving rise to the claim." In the end, however, "[t]he acceptance or rejection of an opinion of a qualified expert is a matter for the trier of fact unless the opinion is so unreasonable as to be unacceptable to a rational mind." (Internal quotation mark omitted.) Smith v. Andrews, 289 Conn. 61, 72, 959 A.2d 597 (2008). See Wyszomierski v. Stracusa, 290 Conn. 225, 243-44, 963 A.2d 943 (2009) (conflicting expert testimony may be accepted or rejected in whole or in part).
Consideration is not based on whether the outcome was favorable or detrimental. Treatment does not have to be perfect to meet the standard of care. Rather, the standard is that degree of care ordinarily exercised by reasonably careful providers in the same circumstances. Wasfi v. Chaddha, 218 Conn. 200, 205 n. 7, 588 A.2d 204 (1991). The applicable standard of care does not necessarily prescribe only one course of conduct in a set of circumstances: there may be several choices which meet the standard of care, and, so long as the standard is met, there is no liability if the path chosen results in an unfortunate outcome. Id., 208-10.
The plaintiff presented the testimony of two expert witnesses, Drs. Davis and Gelfand, both of wham opined that professional standards of care required that the defendant determine the cause of the persistent symptoms of hematuria which mandated, at a minimum, that a cystoscopy be performed on the decedent. Dr. Davis testified that, in his opinion, the defendant deviated from the standard of care when he failed to perform a cystoscopy as of January 2004, in order to determine if bladder cancer was the cause of the intermittent hematuria, focally atypical bladder cells and painful urination that the decedent had been experiencing. In Dr. Davis's opinion, the persistence of red blood cells after the administration of antibiotics in July 2003, and February 2004, was not consistent with prostatitis, as had been diagnosed by the defendant. Dr. Davis testified that the perseverance of microhematuria suggested the possibility that some other type of process, such as cancer, was the cause of the continued presence of red blood cells.
The plaintiff presented the testimony of Dr. Gelfand in furtherance of a breach of the standard of care. Dr. Gelfand, although not a urologist, testified that in his opinion, as an internist, the defendant was obligated to find the source of the reoccurring red blood cells. Dr. Gelfand added that in the absence of white blood cells, connoting a urinary tract infection, it becomes incumbent upon a doctor to rule out cancer as the cause of the hematoria.
The defendant's experts, Dr. Droller and Dr. Grasso, testified that the defendant, at all times, treated the decedent in accordance with the standard of care. Dr. Grasso's position was that a cystoscopy could not have been performed at the office visit of January 20, 2004, in light of the decedent's prostatitis. According to Dr. Grasso, on September 28, 2004, the decedent was no longer complaining of any symptoms which would have warranted such a procedure. Both doctors agreed that intermittent microhematuria and painful urination are consistent with a differential diagnosis of bladder cancer and that the decedent's history of smoking put him at higher risk for such cancer. Dr. Droller stated that the standard by which urologists are taught to evaluate the possibility of bladder cancer when it is part of the differential diagnosis is a cystoscopy.
In determining whether the defendant has failed to use the proper care in treating the plaintiff the court must decide whether the defendant exercised the care, skill and diligence which is raised by like physicians who practice in the field of urology. The court finds that the prevailing standard of care obligated the defendant to diagnosis the source of the decedent's reoccurring symptoms of hematoria. The defendant's breach thereof results in a finding by this court that the plaintiff has sustained the burden of proof regarding a violation of the first element, standard of care.
However, applying these legal principles does not end the inquiry. Regardless of how "negligent a party may have been, if his negligent act bears no relation to the injury, it is not actionable." (Citations omitted; internal quotation marks omitted.) Sherman v. Bristol Hospital, Inc., 79 Conn.App. 78, 88 n. 6, 828 A.2d 1260 (2003).
2. Causation
"All medical malpractice claims, whether involving acts or inactions of a defendant physician, require that a defendant physician's conduct proximately cause the plaintiff's injuries. The question is whether the conduct of the defendant was a substantial factor in causing the plaintiff's injury." Poulin v. Yasner, 64 Conn.App. 730, 738, 781 A.2d 422, cert. denied 258 Conn. 921, 782 A.2d 1245 (2001). "Causation may be proved by circumstantial evidence and expert testimony . . . The expert opinion that seeks to establish the causal connection between the injury and the alleged negligence must rest upon more than surmise or conjecture." (Citations omitted; internal quotation marks omitted.) Shelnitz v. Greenberg, supra, 200 Conn. 66.
The plaintiff's expert, Dr. Davis, testified that, in his opinion, based on the decedent's clinical presentation in early 2004, the bladder tumor would have likely been a low grade superficial tumor at that time. He believe that during this initial stage the tumor would have been amenable to resection by cystoscopy and local chemotherapy without the need for surgery to remove the bladder. Both Drs. Davis arid Gelfand testified that had the cancer been discovered in early 2004, it, in all probability, would have been a low stage cancer with a 60 to 90 percent chance fur successful treatment. They also believed that the delay in diagnosis until early 2005, allowed the tumor to grow and spread and thereby diminish the decedent's chance of survival. The plaintiff's experts opine that it was extremely unlikely that the decedent's cancer had metastasized as of February 2004. Both doctors admitted, however, that they could not with reasonable medical certainty say whether cancer had entered the lymphatics some thirteen months earlier than diagnosed. They also conceded that the chances for curative surgery in January or February 2004, depended upon whether tumor cells had already spread into the lymphatics, which would significantly reduce the chances for long-term survival.
The defendant's experts, Drs. Droller and Grasso testified that bladder cancer is not one cancer but a term that refers to a heterogeneous group of cancers involving the bladder. Dr. Droller opined that in general, low and high grade tumors are independent entities end that rarely do low grade cancers transform into high grade forms. According to Dr. Droller, high grade bladder cancers are intensely aggressive, metastasizing earlier than they are diagnosable. Dr. Droller was of the view that the decedent had a particularly aggressive and genetically unstable bladder cancer classified as high grade from inception. It was Dr. Droller's position that the decedent's cancer would have been more readily detectible by way of a cytological examination as the high grade nature of the decedent's tumor made it particularly sensitive to cytology. The sequential cytology performed on the decedent, in January and February 2004, would have made detectability even higher had the tumor actually been present. Furthermore, Dr. Droller testified that, in his view, the decedent's tumor did not develop sub-mucosally, which thereby permitted the tumor to metastasize before it became detectable. Dr. Droller concluded that the decedent's tumor was sessile, high grade and aggressive, growing downward, with exceedingly invasive qualities in its earliest stages, thereby leading to micrometastases at an early stage of the tumor's development. Dr. Droller further disputed the survival curves relied on by Dr. Gelfand from the National Cancer Institute as unreliable. Droller believed they did not differentiate between sessile tumors or low grade and high grade papillary tumors and did not account for tumors, such as the decedent's, which undergo micrometastases while still in the early stages of development.
Micrometastases involves the spreading of cancerous cells from a primary cite.
Defense expert, Dr. Grasso, corroborated the testimony of Dr. Droller. Grasso opined that the decedent's tumor was most likely not detectable until some three to four months before February 16, 2005, when the decedent had an episode of gross bleeding on urination. It was Dr. Grasso's opinion that the tumor was sessile with a papillary component and that such tumors are usually "high grade and horrible prognosticators." Dr. Gelfand supported defense experts in the classification of the decedent's tumor as high grade and agreed that most high grade tumors begin as such and do not transform from low to high grade with the passage of time. Dr. Gelfand further agreed that in the presence of high grade disease, such as the decedent's, urine cytology is sensitive eighty to eighty-five percent of the time.
"[I]t is the plaintiff who bears the burden to prove an unbroken sequence of events that tied [the] injuries to the [defendant's conduct] . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection . . . This casual connection must be based upon more than a conjecture and surmise." (Emphasis on original; internal quotation marks omitted.) Weigold v. Patel, 81 Conn.App. 347, 354-55, 840 A.2d 19, cert. denied, 268 Conn. 918, 847 A.2d 314 (2004); see also Malloy v. Colchester, 85 Conn.App. 627, 633-34, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004).
After careful review of all the evidence and corresponding legal principles, the court concludes that the plaintiff has failed to sustain her burden of proof. As previously noted, the plaintiff's burden is two-fold. Did the defendant exercise the care, skill and diligence employed by like physicians in the defendant's field of practice, urology? Secondly, was any such deviation from the proper standard of care the proximate cause of the claimed injuries and subsequent death of the decedent?
It is the court's finding that the plaintiff has failed to prove by a preponderance of the evidence that, to a reasonable medical probability, the decedent's injuries were proximately caused by the negligence of the defendant. The court finds the more credible testimony that of the defendant's experts, Drs. Droller and Grasso, who reasoned that the decedent's tumor was a particularly aggressive, high grade form of cancer from its inception. This unfortunately gave the decedent limited opportunity for recovery and gave the defendant a restricted ability by which to diagnosis this particular form of cancer. The court further credits the doctors' testimony that it was unlikely the tumor was present in September of 2004. Thus, while the failure of the defendant to perform a cystoscopy during this time period warrants a finding of negligence, the court cannot find that had the procedure been performed it would have resulted in a finding of cancer. Accordingly, the plaintiff has failed to sustain her burden of proving that the defendant's negligence was a substantial factor in causing the decedent's death.
Count two: Loss of Chance
In count two of the complaint the plaintiff sets forth a claim for loss of chance. The plaintiff alleges that as a direct result of the negligence of the defendant, the decedent was deprived of a chance for successful treatment.
"We employ loss of chance . . . to include `decreased chance,' be it of successful treatment or survival itself . . . To prevail on [a loss of chance] claim, a plaintiff must show (1) that he has in fact been deprived of a chance for successful treatment and (2) that the decreased chance for successful treatment more likely than not resulted from the defendant's negligence . . . In other words, the plaintiff must show that what was done or failed to be done probably would have affected the outcome . . . In order to satisfy the elements of a lost chance claim, the [plaintiff] must first prove that had the standard of care been followed, there was a greater than 50 percent chance of avoiding the harm . . . The [plaintiff] must then prove that the decreased chance for survival or successful treatment more likely than not resulted from the defendant's negligence." (Citations omitted; internal quotation marks omitted.) Peterson v. Ocean Radiology Associates, P.C., 10 Conn.App. 275, 277-79, 951 A.2d 606 (2008). "[I]t is not sufficient for a lost chance plaintiff to prove merely that a defendant's negligent conduct has deprived him or her of some chance; in Connecticut, such plaintiff must prove that the negligent conduct more likely than not affected the actual outcome." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital supra, 272 Conn. 574. Ultimately, on a loss of chance claim the plaintiff must prove that prior to the defendant's negligence, the decedent had a chance of survival of at least 51 percent. Drew v. William W. Backus Hospital, 77 Conn.App. 645, 653-54, 825 A.2d 810, cert. granted, 265 Conn. 909, 831 A.2d 249 (2003) (appeal withdrawn December 22, 2003).
The court finds that the plaintiff has failed to prove that the defendant's actions resulted in a loss of opportunity for the decedent to achieve favorable medical recovery of bladder cancer. Rather, Drs. Davis' and Gelfand's testimony, while offering statistical guidance of favorable prognosis if the tumor were deemed low or high grade and papillary, such testimony was generic in nature. Their testimony concerning the decedent's chance of survival was speculative. Based on the record before the court, it is unable to conclude that the decedent was more likely than not to have survived with proper medical care. The plaintiff has therefore failed to remove the decreased chance of successful treatment theory from the realm of speculation. See LaBieniec v. Baker, 11 Conn.App. 199, 210, 526 A.2d 1341 (1987).
Counts three and five: Loss of Consortium
In counts three and five the plaintiff claims for common-law and statutory loss of consortium respectively. The plaintiff claims that as a result of the defendant's negligence he is liable to her in her individual capacity for the loss she suffered of the love, companionship, society and comfort of her husband, as well as her own mental anguish and loss of support, affection and overall consortium of the decedent.
Loss of spousal consortium was first recognized by our Supreme Court as a cause of action in Hopson v. St. Mary's Hospital, 176 Conn. 485, 496, 408 A.2d 260 (1979). Consortium encompasses "the services of the [injured spouse], the financial support of the [injured spouse], and the variety of intangible relations which exist between spouses living together in marriage." (Internal quotation marks omitted.) Jacoby v. Brinckerhoff, 250 Conn. 86, 90-91, 735 A.2d 347 (1999). "Because a consortium action is derivative of the injured spouse's cause of action, the consortium claim would be barred when the suit brought by the injured spouse has been terminated by settlement or by an adverse judgment on the merits." (Internal quotation marks omitted.) Swanson v. Groton, 116 Conn.App. 849, 864, 977 A.2d 738 (2009). As the court has ruled that the plaintiff has failed to sufficiently sustain her burden of proof on the underlying counts, recovery based on a loss of consortium theory is barred.
IV. CONCLUSION
For the foregoing reasons the court finds for the defendant on all counts and renders judgment accordingly.