THOMAS COSTANZO v. F. SCOTT GRAY et al., AC 29228

Judicial District of Danbury

    Medical Malpractice; Battery; Whether the Trial Court Should have Admitted Evidence of Standard of Care as it Related to Defendant's Medical Record Keeping; Whether Patient Pamphlet was Properly Barred in Connection with Challenge to Defendant's Credibility; Whether the Court should have Set Aside the Defendants' Verdicts as being Unsupported by the Evidence. The plaintiff, who was experiencing low back pain, saw F. Scott Gray, an orthopedic surgeon, for treatment.  He underwent a magnetic resonance imaging (MRI) scan, which revealed a "large left posterolateral disc protrusion at [the] L4-L5" level of the spine.  After discussing the MRI results with the plaintiff, Gray wrote in an office note that the MRI showed a left sided herniation, "probably in part free fragment."  The plaintiff agreed to undergo a microdiscectomy using the METRx retractor system, which permits disc repair surgery to be done through a small  incision.  Subsequently, Gray submitted a history and physical examination form to the hospital that described the plaintiff's complaint as low back pain with right leg discomfort and a right sided herniation.  Before surgery, the plaintiff signed a form consenting to a "left L4-L5 microdiscectomy."  Gray performed surgery on the right side of the plaintiff's back and, in the postoperative report, again referred to right sided herniation.  Following surgery, the plaintiff's back pain continued and he underwent two additional back surgeries.  Subsequently, the plaintiff sued Gray and his office practice.  He alleged that Gray negligently operated on the wrong side of his back and committed a battery since the plaintiff had consented to surgery on his left side.  At trial, the plaintiff's expert testified that Gray had performed a right sided microdiscectomy.  Gray, however, testified that although he made some erroneous record entries, he intentionally performed a left microdiscectomy via a right sided approach because this procedure is safer when using the METRx retractor system.  The defendants' expert testified that Gray acted within the standard of care by taking the right sided approach in this case, although he stated that if Gray had suspected a free fragment, then the standard of care would have required him to take a left sided approach to address the left sided herniation.  As to the free fragment, Gray testified that although he initially thought there was one, he changed his mind after speaking with a radiologist.  Also, the plaintiff asked Gray questions about the availability of a patient pamphlet describing the METRx procedure and whether he gave any such pamphlets to patients undergoing a microdiscectomy.  The trial court refused to allow the plaintiff to admit one of the pamphlets into evidence to attack Gray's credibility.  Also, the court precluded the plaintiff from asking Gray or his expert about the standard of care regarding the creation and keeping of medical records.  At the end of the trial, the jury found for the defendants, and the court refused to set aside the verdict.  On appeal, the plaintiff, in addition to challenging the foregoing evidentiary rulings, contends that the court improperly refused to set aside the verdict on the battery count.  He asserts that the defendants' expert testified that Gray did not "technically" perform a left microdiscectomy and, hence, the verdict was contrary to the evidence.  Further, he claims that the court should have set aside the verdict on the negligence count because the jury could not have reasonably concluded that Gray's undocumented conversation with an unidentified radiologist would have altered his thinking about the presence of a free fragment, and the jury should have found, therefore, that Gray breached the standard of care in taking a right sided approach.

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