Hospital failed to do follow-up ultrasound: cancer & mastectomy.

MURPHY'S LAW (THAT EVERYTHING THAT CAN GO WRONG WILL GO WRONG) APPLIED IN THIS CASE! The patient involved had the misfortune of encountering a different radiologist than the one who had told her to return for a follow-up ultrasound after her mammogram was inconclusive for a mass in her right breast. Unfortunately, when she returned to the hospital for her ultrasound she encountered a different radiologist. He did not feel an ultrasound was indicated and ordered a mammogram, which was inconclusive for signs of a mass. He directed her to return on the date of her next scheduled appointment at which time an ultrasound would be done. Some time elapsed until the next scheduled visit at which time an ultrasound revealed there was a mass in the right breast, and that it had metastasized, necessitating a complete mastectomy of the patient's right breast.

ON AUGUST 9, 2003, BRENDA SAWICKI FILED SUIT AGAINST NEW BRITAIN GENERAL HOSPITAL. Brenda alleged that on August 2, 2000, she went to the hospital for a routine mammogram. A radiologist employed by the hospital indicated it was inconclusive for a mass. He recommended further evaluation with an ultrasound. On August 8,2000, Brenda returned to the hospital for further examination and an ultrasound. Unfortuately, she encountered a different radiologist who decided that another mammogram would suffice. On the basis of a determination that the August 8, mammogram film was inconclusive, the second radiologist recommended that Brenda return for an ultrasound on her next scheduled appointment. Brenda returned as directed. On June 4,2001, a sonogram indicated two masses in the right breast. Further diagnosis revealed cancer which had metastisized. Two days later Brenda underwent a complete mastectomy and reconstruction of her right breast. Axillary nodes that were dissected during the mastectomy were positive for metastasis. Brenda alleged that the hospital breached the standard of care by not performing the ultrasound on August 8,2000. She also alleged that the hospital breached the standard of care by merely recommending that she return for her normally scheduled appointment. Brenda alleged that the subsequent diagnosis of cancer in her right breast was too late, because it had already metastasized and the delayed diagnosis deprived her of the chance of a full recovery and diminished her life expectancy. A jury returned a verdict for the defendant. Brenda's motions to set aside the verdict and for a new trial were denied. Brenda appealed.

THE APPELLATE COURT OF CONNECTICUT REVERSED THE ORDER OF THE TRIAL COURT, WHICH ENTERED JUDGMENT FOR THEHOSPIAL ON A JURY VERDICT AND REMANDED THE CASE FOR A NEW TRIAL. The court held, inter alia that the trial court improperly denied Brenda's motion to set aside the jury's verdict and for a new trial. Further, the court found that Brenda's allegation that there was juror misconduct had merit. The court noted that Brenda, in support of her juror misconduct claim, submitted the affidavits of two jurors. Those jurors, in their affidavits, indicated that some jurors had evaluated the evidence and stated their positions prior to the close of evidence and the court's submission of the case to the jury. They averred that one juror stated his position on the case before any evidence had been taken and that he engaged other jurors in discussion of the merits of the case as evidence was introduced. Following receipt of Brenda's motion, the trial court held an evidentiary hearing during which it questioned all of the jurors, with the exception of one, who had died a few days before the hearing. The trial judge learned that at some point after the verdict, the two jurors had dinner at the plaintiff's home with the plaintiff and her attorney, and they discussed the juror's misconduct and agreed to sign affidavits regarding what had occurred in the jury room. They averred that the juror in question was biased against women and had stated at one point: "I even let them know I was biased against her and they still kept me on the case." The jurors indicated that they recalled him stating, "We know which way this case is going already," and, "she's gonna lose," and, "I can't believe they're keeping me on this case."

A TRIAL JUDGE'S DISCRETION WILL NOT BE QUESTIONED IN RULINGS ON THE ADMISSIBILITY OF EVIDENCE. It is well established that ordinarily a trial judge's rulings on evidentiary matters will be overturned only upon a showing of a clear abuse of the judge's discretion. Concerning expert testimony specifically, atrial judge has broad discretion in ruling on the admissibility of evidence, and, unless that discretion has been abused or the ruling involves a clear misconception of law, the trial judge's decision will not be disturbed. However, in the case at bar, the court found that the trial court erred in ruling on this and, inter alia, the testimony of the plaintiff's expert medical witness inadmissible. Sawicki v. New Britain General Hospital, 115 Conn. App. 25 (6/9/2009)

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island finn of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who Who in American Law, Who's Who in America and Who's Who in the World.

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