Marsh v. County of San Diego,

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

Civil No. 05cv1568 JLS (AJB)

Order Granting Motion to Compel
[Doc. No. 96]

KENNETH M. MARSH,
Plaintiff,

v.
COUNTY OF SAN DIEGO, M.L. MURPHY,
M.D., DAVID L. CHADWICK, M.D.,
ROGER WILLIAMS, M.D., CHILDREN’S
HOSPITAL MEDICAL CENTER and DOES
1 to 100, inclusive,

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Defendants.
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Plaintiff brings this motion to compel seeking all records in the possession of Children’s
Hospital and Health Center (“CHHC”) and its Center for Child Protection, which pertain to Punanai
Polanco, Douglas Allen Yates, Jr. and Harvey Thomas. Defendants’ contend that Plaintiff is not entitled
to the requested discovery because the requested records run afoul of privacy interests and the Health
Insurance Portability and Accountability Act (HIPAA). The parties submitted letter briefs as this
motion is appropriate for submission on the papers and without oral argument pursuant to Local Rule
7.1(d)(1). Based upon the moving papers and for the reasons set forth herein, Plaintiff’s Motion to
Compel is hereby GRANTED.

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Background
The instant action was brought by Plaintiff under 42 U.S.C. § 1983 alleging violations of
Plaintiff’s Fourth Amendment rights, malicious prosecution under both § 1983 and state law, intentional
infliction of emotional distress and violation of state civil rights statutes. Plaintiff was convicted of the
murder of Phillip Buell. The complaint in the instant action alleges a conspiracy between Defendants to
mislead and distort the medical history of Phillip Buell and to perform his autopsy in a false and
deliberate manner to convict Plaintiff. Plaintiff’s complaint also alleges that the Defendants improperly
influenced the County of San Diego to allow them to perform autopsies and autopsy related services in
cases where children’s deaths were suspected of having been caused by abuse.
Plaintiff brings this motion to compel seeking all records in the possession of Children’s
Hospital and Health Center (“CHHC”) and its Center for Child Protection, which pertain to Punanai
Polanco, Douglas Allen Yates, Jr. and Harvey Thomas, who were admitted to the hospital and died there
in November 1983, October 1983 and January 1986, respectively. Punanai Polanco was autopsied at
CHHC, which subsequently reported force feeding by her caretaker as the cause of her death. When a
second autopsy was performed, it revealed that Punanai had died accidentally and all charges against her
parents were dropped. Douglas Allen Yates, Jr. (son of John and Michelle Ferraro) was autopsied at
CHHC, which resulted in charges of child abuse and murder being brought against his parents. During
the criminal prosecution of John and Michelle Ferraro, the cause of death was determined to be the
result of an accidental fall and all charges against the parents were dismissed. Harvey Thomas was
transferred to CHHC because he was suffering from symptoms attributable to a congenital defect, but
was diagnosed with non-accidental injuries as a result of violent shaking or a fall. The CHHC finding
resulted in the removal of the Thomas’s other child from the home, and the Thomas’s were charged with
murder. Subsequent expert testimony showed that the cause of death was the congenital defect and the
Thomas’s were cleared of all charges. Both the Ferraros and Thomas’s brought suit, but each case was
dismissed based on the Mandated Reporter Immunity found in Penal Code section 11172(a).

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05cv1568

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Legal Standard

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I. Rule 37 – Motion to Compel
Federal Rule of Civil Procedure 26(b)(1)1 states, “Parties may obtain discovery regarding any
matter, not privileged, that is relevant to the claim or defense of any party, including the existence,
description, nature, custody, condition of any books, documents, or other tangible things and the identity
and location of persons having knowledge of any discoverable matter . . . Relevant information need
not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence.” Fed. R. Civ. Pro. 26(b)(1). “Generally, the purpose of discovery is to remove
surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their
dispute. Toward this end, Rule 26(b) is liberally interpreted to permit wide-ranging discovery of
information even though the information may not be admissible at the trial.” U.S. ex rel. Schwartz v.
TRW, Inc., 211 F.R.D. 388, 392 (C.D. Cal 2002)(internal citations omitted).
Federal Rule 37(a)(2)(B), allows the discovering party to move for an order compelling an
answer, a designation, or an inspection in accordance with a specific discovery request. Fed. R. Civ.
Pro. 37(a)(2)(B). This rule establishes “a flexible means by which a court may enforce compliance with
the Federal discovery procedures through a broad choice of remedies and penalties.” B.F. Goodrich Tire
Co. v. Lyster, 328 F. 2d 411, 415 (5th Cir. 1954). Answers that are evasive or incomplete are treated as
a failure to disclose. Fed. R. Civ. Pro. 37(a)(3).

Discussion
At issue in this motion is the balance of the families’ privacy against the public interest in
disclosure. Defendants’ contend that Plaintiff’s motion to compel should be denied because the
requested documents are protected by: 1) the right to privacy in the confidentiality of one’s own medical
records, which extends to the family of the decedent; 2) HIPAA regulations which prohibit health care
providers from divulging patients’ medical records without their consent or a qualified protective order
and; 3) The California Confidentiality of Medical Information Act which provides that “[n]o provider of

1All future references will be to the Federal Rules of Civil Procedure unless otherwise stated.

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health care . . . shall disclose medical information regarding a patient . . . without first obtaining an
authorization except . . . by a court pursuant to an order of that court.” Cal. Civ. Code §56.10 (2007).
I. Balancing of the Family’s Privacy and the Public Interest in Disclosure
The United States Supreme Court has recognized a right of privacy in the confidentiality of
medical records and this right has been extended to include privacy rights of the deceased.2 The right of
privacy is balanced against the public interest in disclosure.3 The party seeking disclosure must show
that the public interest is significant and that the information is likely to advance that interest. The
relevant factors to be considered in determining the scope of protection to be afforded individual privacy
rights includes: 1) the encroachment of the individual’s privacy right; 2) whether the encroachment
would impact an area that has traditionally been off limits for most regulation; 3) whether the informa-
tion is available from other sources; 4) the extent to which the privacy rights impinge on the rights of
others; and 5) whether the interests of society at large encourage a need for the encroachment. Pagano
v. Oroville Hospital, 145 F.R.D. at 699.
Alternatively, the public interest requirement may be satisfied when the information sought is
necessary to show that responsible officials acted negligently or otherwise improperly in the perfor-
mance of their duties. National Archives and Records Administration v. Favish, 541 U.S. at 173. In the
instant case, the Plaintiff is requesting the information to establish a modus operandi of falsely claiming
child abuse murder when the manner of death was accidental. “The requester must also produce
evidence that would warrant a belief by a reasonable person that the alleged Government impropriety
might have occurred.” Id. at 174. Here, the Plaintiff has produced sufficient evidence to warrant a
belief that the impropriety may have occurred. As such, the Plaintiff has demonstrated that a significant
public interest exists that outweighs the individual privacy rights of the three deceased children and their
families in keeping such records confidential. Furthermore, an individual’s privacy rights with regard to

2Powell v. United States, 584 F. Supp. 1508, 1526 (N.D. Cal. 1984). A deceased patient retains a
privacy right. Although not raised in the Defendant’s brief, the privacy interests of the deceased
diminishes with the passage of time.
3Fritsch v. City of Chula Vista, 187 F.R.D. 614 (S.D. Cal. 1999); Pagano v. Oroville Hospital,
145 F.R.D. 683 (E.D. Cal. 193); Powell v. United States, 584 F. Supp. at 1526; National Archives and
Records Administration v. Favish, 541 U.S. 157 (2004); Division of Medical Quality, Board of Medical
Quality Assurance v. Gherardini, 93 Cal. App. 3d 669 (1979).
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medical records is diminished after death. Powell, 584 F.Supp. 1508 at 1526. The parent’s privacy
rights may be impinged by the disclosure, this is outweighed by the fact that the information can only be
obtained through these confidential medical records. Cox Broadcasting Corp. V. Cohn, 420 U.S. 469,
474 (1975). While the Defendants contend that the information requested approaches or exceeds the
outer boundaries of relevance, the Court does not agree. The Plaintiff has demonstrated that the
information sought is reasonably calculated to lead to the discovery of admissible evidence regarding a
modus operandi of the Defendants and as such, Plaintiff is entitled to the requested discovery.
II. HIPAA & California Confidentiality of Medical Information Act
HIPAA provides that a person may not be denied eligibility for health insurance based on their
medical records. It also imposes requirements on the Department of Health and Human Services
(“DHHS”), health plans and healthcare providers to protect information. The argument that HIPAA
provides for a private right of action has consistently been rejected because the law specifically states
that DHHS must pursue enforcement actions, because HIPAA does not provide an individual with a
private cause of action.4 The Plaintiff states, and the court agrees, that HIPAA and the California
Confidentiality of Medical Information Act do not present a bar to the release of these records, since
such records can be disclosed if compelled by a court order and the use of such records is limited by the
protective order in this case.

Conclusion

4Acara v. Banks, 480 F.3d 569 (5th Cir. 2006); Alexander v. Sandoval, 532 U.S.275 (2001); Agee
v. United States, 72 Fed.Cl. 284 (2006); Walker v. Gerald, 2006 WL 1997635 (E.D.La. 2006); Poli v.
Monuntain Valley’s Health Ctrs., Inc., 2006 WL 83378 (E.D.Cal. 2006); Cassidy v. Nicolo, 2005 WL
3334523 (W.D.N.Y. 2005); Johnson v. Quander, 307 F.Supp.2d 79(D.D.C. 2005); Univ. Of Colo. Hosp.
v. Denver Publishing Company, 340 F.Supp.2d 1142 (D.Colo.2004); O’Donnell v. Blue Cross Blue
Shield of Wyo., 173 F.Supp.2d 1176 (D.Wyo.2001); Means v. Ind. Life & Accident Ins. Co., 963 F.Supp.
1131 (M.D.Ala.1997); Wright v. Combined Ins. Co. of Am., 959 F.Supp. 356 (N.D.Miss.1997).
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05cv1568

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For the reasons set forth above, Plaintiff’s Motion to Compel is hereby GRANTED. Defendants
shall produce all non-privileged5 documents responsive to Plaintiff’s requests on or before November 9,
2007.

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IT IS SO ORDERED.
DATED: October 15, 2007

Hon. Anthony J. Battaglia
U.S. Magistrate Judge
United States District Court

5Any privilege Defendant’s wish to assert that was not covered by this order must be done in
compliance with the Federal Rules.
6
K:COMMONBATTAGLICASESMarsh5cv1568.Marsh.v.County.of.SD.Order.mtc2.wpd

05cv1568

Manifold v. Ragaglia

******************************************************
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the opinion as it appears on the Commission on Official
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and in the Connecticut Law Journal and bound volumes
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duced and distributed without the express written per-
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******************************************************

KAYLEE MANIFOLD ET AL. v. KRISTINE D.
RAGAGLIA, COMMISSIONER OF CHILDREN
AND FAMILIES, ET AL.
(SC 17150)

Sullivan, C. J., and Norcott, Katz, Palmer and Vertefeuille, Js.

Argued October 20—officially released December 28, 2004

Thomas C. Simones, with whom was Timothy A.
Bishop, for the appellants (plaintiffs).

Dana M. Horton, for the appellees (defendant Robert
Creutz et al.).

Carolyn Signorelli, assistant attorney general, with
whom, on the brief, were Richard Blumenthal, attorney
general, and Maite Barainca, assistant attorney gen-
eral, for the appellees (named defendant et al.).

Opinion

NORCOTT, J. The sole issue in this appeal is whether
a physician who is not the initial reporter of suspected
child abuse, but who performs a medical examination
of a child at the request of the department of children
and families (department) to determine whether rea-
sonable cause exists to suspect child abuse, is entitled
to the immunity from liability provided by General Stat-
utes § 17a-101e (b).1 The plaintiffs, the minors, Kaylee
Manifold (Kaylee) and Matthew Manifold (Matthew),
and their parents, Billie Jo Zaks and Michael Manifold
(parents), brought this action for, inter alia, negligent
infliction of emotional distress, against the following
defendants: (1) Kristine D. Ragaglia, individually, and
as commissioner of the department, and various depart-
ment employees (department defendants);2 and (2)
Robert Creutz, a physician, and his employer, William
Backus Hospital (William Backus), collectively referred
to as the medical defendants. The plaintiffs also brought
claims of medical malpractice against the medical
defendants. The plaintiffs appeal3 from the trial court’s
grant of the medical defendants’ motion for summary
judgment dismissing counts two, three and four of the
complaint. We conclude that a physician who performs
a medical examination of a child at the request of the
department to determine whether reasonable cause
exists to suspect child abuse is entitled to immunity
from liability under § 17a-101e (b) for claims arising
from that determination. Accordingly, we affirm the
judgment of the trial court.

The record reveals the following facts and procedural
history. On April 23, 2001, an anonymous caller from
the office of the plaintiffs’ pediatrician at the Norwich
Pediatric Group contacted the department to report
that Kathleen Welch, a speech therapist with the Birth
to Three Program, had noticed numerous bruises on
both Matthew and Kaylee, and a rash on Matthew while
she was conducting a home based therapy session.4 In
particular, Welch noticed that both children had bruises
in the same location on their foreheads.5 Matthew and
Kaylee were two and three years old, respectively, at
this time.

The following day, Richard Days, a department social
worker, made an unannounced visit to the plaintiffs’
home. Days informed the parents of the reason for the
visit, and they consented to his examining the children.
He noted that both children were dirty and had bruised
foreheads, while Matthew also had extensive bruising
on his entire back and a rash on the front and back of
his
torso. Upon questioning by Days, Manifold
explained that he had not taken Matthew to the pediatri-
cian because he thought the rash was from Matthew
recently having eaten $50 worth of chocolate. Manifold
explained to Days that his son bruised easily, and that
he had sustained the bruises while roughhousing with

his sister and playing with his new toy trucks and the
family dog. Later that day, Days accompanied the plain-
tiffs to the office of their family pediatrician at the
Norwich Pediatric Group.

Upon their arrival, Days asked whether Richard
Geller, the family’s regular pediatrician, could examine
the children to determine whether there was reasonable
cause to suspect that they had been abused. Geller
stated that he was unable to examine the children at
that time and that they should not have been brought
to his office; he advised Days to take the children to
the emergency room at William Backus if an immediate
examination was needed. Days then made an appoint-
ment with Geller for the following morning, but trans-
ported the plaintiffs to the William Backus emergency
room for a more immediate evaluation.

At William Backus, Creutz examined both children,
and ordered an X ray of Matthew. The X ray revealed
no fractures, but Creutz stated in the notes of his exami-
nation that Matthew had a rash6 and bruises on his head
and chest, as well as three large bruises on his back.
The report also noted that Matthew had bruises on his
legs, knees, thighs and both ocks. The parents told
Creutz that the bruises were the result of roughhousing
with the dog and his sister, as well as a fall. Both parents
denied causing the injuries, and told Creutz that no
one ever had struck Matthew, except for ‘‘pats on the
bottom.’’7 On the basis of the number and size of the
bruises, Creutz concluded, however, that the bruises
were typical of inflicted, rather than accidental, injuries,
and he recommended further investigation of the injur-
ies’ source. He testified at his deposition that he did
not order any blood tests to determine whether a blood
disorder contributed to the bruising because the physi-
cal findings alone raised a sufficiently high suspicion
of child abuse to require that it be ruled out, even if
the blood test result was positive.

Creutz explained the results of the examination to
Days, who in turn discussed them with other depart-
ment personnel. Shortly thereafter, Jorge Osorio, a
department supervisor, authorized a ninety-six hour
hold of the children pursuant to General Statutes § 17a-
101g (d). The children then were taken into department
custody with the assistance of local police, and were
placed in a licensed foster home. The department subse-
quently applied for and obtained orders of temporary
custody of the children from the Superior Court for
Juvenile Matters, Driscoll, J., on April 25, 2001.

On April 25, 2001, Days met the children and the
foster mother at the office of the Norwich Pediatric
Group. At that time, Nancy Cusmano, a pediatrician,
examined both children. Cusmano ordered blood tests
for Matthew, stating that a normal blood test would
indicate a high probability of abuse. Upon receiving the
results of the test, however, Cusmano informed Days

that Matthew’s blood test showed some abnormalities,
including a very low blood platelet count that generally
causes clotting difficulties. She said that this condition
could explain both the bruising and the rash. See also
footnote 6 of this opinion. Cusmano referred Matthew
to Joseph McNamara, a hematologist at Yale-New
Haven Hospital (Yale), for further evaluation. There-
after, McNamara diagnosed Matthew with idiopathic
thrombocytopenic purpura, a blood disorder, and
admitted him to Yale for treatment. The following day,
April 26, 2001, McNamara advised Days that the marks
and bruising were consistent with the blood disorder.
Matthew subsequently was discharged from Yale. In
light of this new information, the court granted the
department’s motion to vacate the orders of temporary
custody. The department returned the children to the
parents’ custody later that same day, and Days relayed
the Yale discharge instructions to them.

The neglect petitions that were filed with the court
on April 25, 2001, however, remained active, although
the department amended them to remove the initial
allegations of physical abuse. The case was transferred
to the department’s division of protective services for
further monitoring and study. A social study subse-
quently was filed with the court, and the neglect peti-
tions were withdrawn in October, 2001.

In April, 2002, the plaintiffs instituted this action.
In count one of the complaint, the plaintiffs alleged
numerous acts of malice, negligence and recklessness
by the department defendants with respect to the inves-
tigation. In count two of the complaint, the plaintiffs
alleged that Creutz committed medical malpractice by
failing to order a blood test, which resulted in a misdiag-
nosis of child abuse rather than a blood disorder. In
count three, the plaintiffs made claims against William
Backus derivative of Creutz’ alleged malpractice. In
count four, the plaintiffs alleged that the conduct of
all the defendants, including the medical defendants,
constituted negligent infliction of emotional distress.

Subsequently, the medical defendants moved for
summary judgment as to all of the counts against them.
The trial court, Gordon, J., granted their motion, con-
cluding that Creutz was entitled to immunity from liabil-
ity pursuant to § 17a-101e (b) because, as a physician,
he was a ‘‘mandated reporter’’ within the scope of that
statute. The trial court determined that, as a matter
of public policy, Creutz was entitled to the statutory
immunity because ‘‘we want to protect doctors and
other people who we rely on to protect our children to
feel free to participate in this often highly charged and
potentially legal minefield-like environment
.
.
.
.’’
The trial court noted that, ‘‘whether or not [the physi-
cian] is a ‘mandated reporter’ making a determination
at the outset in this case or not, he is immune as some-
body who is part of the evaluative process of detecting

and hopefully averting the mistreatment of children.’’
The court then concluded that William Backus was
immune because the claims against it were derivative
of those against Creutz, and emphasized that there was
no genuine issue of material fact present that would
preclude the court from granting a motion for summary
judgment in favor of the medical defendants. See Prac-
tice Book § 17-49. This appeal followed.8

On appeal, the plaintiffs claim that the trial court
improperly concluded that Creutz was immune from
liability under § 17a-101e (b). They contend that,
although Creutz is, as a general matter, a ‘‘mandated
reporter’’ under General Statutes § 17a-101 (b), and
hence entitled to immunity under § 17a-101e (b) when
making a good faith error in the initial ‘‘reporting’’ of
suspected child abuse, he was not acting in that capacity
when he committed routine medical malpractice by
failing to order blood tests that would have detected
Matthew’s blood disorder. Put differently, the plaintiffs
claim that Creutz’ failure to order the blood test falls
outside the scope of the immunity provided by § 17a-
101e (b) because his actions did not constitute the ‘‘first
person report[ing]’’ of child abuse.

In response, the medical defendants argue that § 17a-
101e (b) applies to Creutz because, as a mandated
reporter, he was obligated to report his reasonable sus-
picion of child abuse, regardless of the fact that he had
examined the children at the request of the department.
The medical defendants also rely on this court’s deci-
sion in Zamstein v. Marvasti, 240 Conn. 549, 692 A.2d
781 (1997), and contend that the public policy behind
the child protection statutes requires the extension of
immunity to physicians who act in good faith and per-
form independent medical examinations at the behest
of the department to determine the existence of a rea-
sonable suspicion of child abuse.

In the present case, the underlying material facts are
undisputed, and ‘‘the case distills to an issue of statutory
interpretation over which our review is plenary.’’9 Bar-
rett v. Montesano, 269 Conn. 787, 792, 849 A.2d 839
(2004). It is well settled that in construing statutes,
‘‘[o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature.’’ (Internal
quotation marks omitted.) State v. Kirk R., 271 Conn.
499, 510, 857 A.2d 908 (2004). Our well settled principles
of statutory construction require us to interpret § 17a-
101e (b) as it relates to the other child protection stat-
utes, General Statutes § 17a-101 et seq. See, e.g., Hatt
v. Burlington Coat Factory, 263 Conn. 279, 309–10, 819
A.2d 260 (2003). We note that the text of § 17a-101e
(b), both by itself and in relation to other statutes, is
silent with respect to the extension of immunity to
physicians who perform child abuse evaluations for the
department pursuant to the investigation of a report of
suspected child abuse. Such silence does not, however,

necessarily equate to ambiguity, and we look first to
the text of § 17a-101e (b) and the related provisions
to determine the legislature’s intent. See, e.g., Carmel
Hollow Associates, Ltd. v. Bethlehem, 269 Conn. 120,
133, 848 A.2d 451 (2004); see also Public Acts 2003, No.
03-154, § 1.

We begin our analysis with a review of the relevant
statutory language. Section 17a-101 (a) is an express
statement of public policy and legislative intent, and
provides that: ‘‘The public policy of this state is: To
protect children whose health and welfare may be
adversely affected through injury and neglect;
to
strengthen the family and to make the home safe for
children by enhancing the parental capacity for good
child care; to provide a temporary or permanent nurtur-
ing and safe environment for children when necessary;
and for these purposes to require the reporting of sus-
pected child abuse, investigation of such reports by a
social agency, and provision of services, where needed,
to such child and family.’’

In furtherance of this public policy goal of protecting
children from abuse, the statute provides a comprehen-
sive list of persons who are ‘‘mandated reporters,’’ many
of whom are health care providers, including physicians
either licensed in Connecticut or acting as interns or
residents at our hospitals. See General Statutes § 17a-
101 (b). Thus, the statute prescribes that a ‘‘mandated
reporter .
.
. who in the ordinary course of [his or
her] employment or profession has reasonable cause
to suspect or believe that any child under the age of
eighteen years (1) has been abused or neglected .
.
.
(2) has had nonaccidental physical injury, or injury
which is at variance with the history given of such
injury, inflicted upon such child, or (3) is placed at
imminent risk of serious harm, shall report or cause a
report to be made [to the department] . . . .’’10 General
Statutes § 17a-101a. Indeed, ‘‘mandated reporters’’ who
fail to report reasonable suspicions of child abuse are
subject to a fine and compulsory participation in an
appropriate training program. See General Statutes
§ 17a-101a.

To encourage and facilitate compliance with the
reporting statute, § 17a-101e provides several protec-
tions for persons or institutions who make reports to
the department, among which is immunity from civil or
criminal liability. Specifically, § 17a-101e (b) provides:
‘‘Any person, institution or agency which, in good faith,
makes, or in good faith does not make, the report pursu-
ant to sections 17a-101a to 17a-101d, inclusive, and 17a-
103 shall be immune from any liability, civil or criminal,
which might otherwise be incurred or imposed and shall
have the same immunity with respect to any judicial
proceeding which results from such report provided
such person did not perpetrate or cause such abuse
or neglect.’’11

Resolution of the issue on appeal turns, therefore,
on whether Creutz was ‘‘making a report’’ of suspected
child abuse or neglect as contemplated by the child
protection statutes, despite the fact that it was a second-
ary determination of abuse. We conclude that Creutz’
act of describing the result of his examination of the
children orally to Days, followed by his provision of a
written account of that examination, clearly falls within
the common usage of the term ‘‘report’’; see American
Heritage College Dictionary (4th Ed. 2002);12 which we
construe broadly given the remedial nature of the child
protection statutes, § 17a-101 et seq. In re Shane P., 58
Conn. App. 244, 258, 754 A.2d 169 (2000) (concluding
that termination of parental rights is remedial); accord
In re Samantha C., 268 Conn. 614, 662–63, 847 A.2d
883 (2004) (noting that ‘‘termination of parental rights
proceedings are not designed to punish parents, but to
protect children’’). Moreover, neither the mandatory
reporting statute; see General Statutes § 17a-101a; nor
the immunity provision; see General Statutes § 17a-101e
(b); contain any language that either limits their applica-
tion to initial reporters of child abuse, or relieves man-
dated reporters from their obligation to report
suspected abuse because the department may already
have knowledge of the child’s circumstances. Indeed,
the immunity provision applies expressly to ‘‘[a]ny per-
son, institution or agency which, in good faith, makes,
or in good faith does not make, the report
.
.
.
.’’
(Emphasis added.) General Statutes § 17a-101e (b). This
is instructive because it is well established that we will
not supply an exception or limitation to a statute that
the legislature clearly intended to have broad applica-
tion. See Connecticut Light & Power Co. v. Dept. of
Public Utility Control, 266 Conn. 108, 119, 830 A.2d
1121 (2003); see also Ames v. Commissioner of Motor
Vehicles, 267 Conn. 524, 531, 839 A.2d 1250 (2004) (not-
ing that word ‘‘any’’ ‘‘can have a variety of meanings
.
. [which] depends upon the context and subject
.
matter of the statute’’ [citations omitted; internal quota-
tion marks omitted]). Accordingly, we conclude that a
physician who performs a child abuse evaluation at the
request of the department is a reporter who is entitled
under § 17a-101e (b) to immunity from liability for
claims arising from that determination.

This construction of this statute extending immunity
to physicians who are secondary reporters performing
child abuse evaluations for the department effectuates
the express legislative purpose behind the relevant child
protection statutes, namely, ‘‘to require the reporting
of suspected child abuse, investigation of such reports
by a social agency, and provision of services, where
needed, to such child and family’’ in order ‘‘[t]o protect
children whose health and welfare may be adversely
affected through injury and neglect .
.
.
.’’ General
Statutes § 17a-101 (a). Indeed, in Zamstein v. Marvasti,
supra, 240 Conn. 558–64, this court both recognized the

importance of the immunity provision to the reporting
statutes and the danger of thwarting these public policy
goals by placing limitations on that immunity.
In
Zamstein, the plaintiff parent was falsely accused of
and tried on charges of sexual abuse as the result of
an interview of his children conducted by the defendant
psychiatrist.13 Id., 551–52. The plaintiff then brought an
action against the defendant claiming, inter alia, negli-
gence in the conduct of the examination and aiding
of the prosecution. Id., 552. The plaintiff also alleged
negligent infliction of emotional distress. Id. The trial
court granted the defendant’s motion to strike the com-
plaint. Id., 552–53. On appeal, this court affirmed, con-
cluding that as a matter of public policy, a mental health
professional performing a sexual abuse evaluation owes
no duty of care to the alleged abuser. Id., 559. The court
relied on the mandated reporter statutes, including the
immunity provision, as evincing the ‘‘strong public pol-
icy of encouraging medical professionals and other per-
sons to report actual and suspected child abuse to the
appropriate authorities and agencies.’’ Id. The court
discussed the policy behind the immunity statute and
cautioned that ‘‘imposing a duty on mental health pro-
fessionals .
.
. would carry with it the impermissible
risk of discouraging such professionals in the future
from performing sexual abuse evaluations of children
altogether, out of a fear of liability to the very persons
whose conduct they may implicate. Such a result would
necessarily run contrary to the state’s policy of encour-
aging the reporting and investigation of suspected child
abuse . . . because effective evaluation and diagnosis
of children is a necessary component of discovering
the abuse in the first instance.’’14 Id., 560–61.

Indeed, our construction of § 17a-101e (b) as
extending immunity to secondary reporters of abuse
also is consistent with the legislature’s recognition of
the important roles of medical professionals in the
investigation of child abuse.15 For example, under Gen-
eral Statutes § 17a-101f,16 physicians examining children
‘‘with respect to whom abuse or neglect is suspected
[may] . . . keep such child in the custody of a hospital
for [up to] ninety-six hours in order to perform diagnos-
tic tests and procedures necessary to the detection of
child abuse or neglect and to provide necessary medical
care . . . .’’17 Moreover, the department is required to
‘‘provide the child [who is in department custody pursu-
ant to a ninety-six hour hold] with all necessary care,
including medical care, which may include an examina-
tion by a physician or mental health professional . . . .
During the course of a medical examination, a physician
may perform diagnostic tests and procedures necessary
for the detection of child abuse or neglect. . . .’’ Gen-
eral Statutes § 17a-101g (d). A construction of § 17a-
101e (b) that affords immunity to physicians aiding
the department in the investigation process encourages
medical professionals to help with this highly sensitive

task, rather than to avoid a role in this process out
of fear of liability when the department arrives at the
hospital with a child who potentially has been abused.
See Zamstein v. Marvasti, supra, 240 Conn. 560–61;
see also Ward v. Greene, 267 Conn. 539, 561, 839 A.2d
1259 (2004) (Palmer, J., concurring) (‘‘[t]he legislature
provided for such immunity because of the highly sensi-
tive, and necessarily discretionary, nature of
the
reporting requirement’’).

The plaintiffs contend, however, that our conclusion
will have a deleterious effect because it will create ‘‘a
loophole for medical malpractice committed against
the state’s children’’ and always give ‘‘a physician in a
similar circumstance .
.
. a second chance to defeat
a malpractice claim.’’ We disagree with the plaintiffs’
assessment of this holding’s effect on malpractice
claims predicated on other misdiagnosis or improper
treatment.

The immunity afforded to a physician under § 17a-
101e (b) is limited to ‘‘damages [that] arise from the
physician’s act of reporting and investigating child
abuse,’’ not those that ‘‘arise from an independent act
of medical negligence.’’ Doe v. Winny, 327 Ill. App. 3d
668, 678, 764 N.E.2d 143 (2002); id. (construing scope
of Illinois immunity statute). The statutory immunity
extends only to the determination of whether a child
has been abused, not to the diagnosis and treatment of
any underlying injuries. Put differently, if the depart-
ment brings a child with a fractured leg to a physician,
and asks the physician to: (1) treat the fracture; and
(2) determine whether the child has been abused, the
physician’s § 17a-101e (b) immunity would be limited
to the abuse determination. See id., 680 (rejecting con-
struction of immunity statute that would immunize phy-
sician ‘‘for his negligence in failing to observe a
cancerous tumor on a child’s labia simply because the
physician was examining the child as part of an investi-
gation of a report of child abuse’’). Accordingly, we
conclude that, contrary to the plaintiffs’ concerns, the
extension of immunity to physicians who participate in
the investigation and reporting of child abuse does not
give them carte blanche to commit malpractice with
respect to the diagnosis and treatment of any underlying
medical conditions.

We also note that our conclusion accords with our
sister states that have considered this issue. Indeed,
Lesley v. State ex rel. Dept. of Social & Health Services,
83 Wash. App. 263, 921 P.2d 1066 (1996), review denied,
131 Wash. 2d 1026, 939 P.2d 216 (1997), is particularly on
point.18 In Lesley, day care workers noticed suspicious
marks on the lower back and ocks of an infant and
were unsure whether they were birthmarks or bruises.
Id., 266–67. They notified child protective services,
whose caseworker called the infant’s pediatrician to
determine whether the child had birthmarks. Id., 267.

The pediatrician’s office staff advised her to take the
infant to the emergency room because the physician
was unavailable. Id. The caseworker and local police
then took the child into protective custody and brought
her to a hospital for evaluation. Id. In the meantime,
the infant’s parents informed the police that the infant
had normal birthmarks on her back and ocks, and
the police relayed this information to the caseworker.
Id. The caseworker did not, however, inform the emer-
gency room physician about what the parents had said
about the birthmarks. Id., 267–68. The physician subse-
quently examined the child and diagnosed the birth-
marks as contusions and possible child abuse. Id., 268.
He recommended further evaluation by a specialist; the
caseworker did not follow up on the suggestion. Id.
The child remained in the temporary custody of the
department for several days until another physician
diagnosed the marks as birthmarks. Id., 271.

Thereafter, the infant’s parents brought an action
against the social worker and the physician alleging,
inter alia, negligent investigation and medical malprac-
tice. Id., 266. With respect to the physician, the Washing-
ton Court of Appeals concluded that the trial court
properly determined that he was entitled to qualified
immunity under that state’s mandatory reporting stat-
ute. Id., 280. The court rejected the parents’ argument
that the physician’s acts did not constitute making a
report under the applicable statute, which ‘‘provides
immunity to any person participating in good faith in
reporting or testifying as to alleged child abuse or
neglect in a judicial proceeding.’’ Id. The court con-
cluded that ‘‘ ‘any person’ ’’ encompassed reporters
beyond the initial reporter of suspected child abuse; the
physician, therefore, was entitled to qualified immunity
because there was no evidence in the record that he
acted in bad faith. Id., 281.

In light of our conclusion that § 17a-101e (b) immu-
nity is applicable to a physician who performs a medical
examination of a child at the request of the department
to determine whether reasonable cause exists to sus-
pect child abuse, we turn to the facts in the present
case. It is clear that Creutz, a mandated reporter under
§ 17a-101 (b), examined the children in the ‘‘ordinary
course of [his] employment or profession’’ at the Wil-
liam Backus emergency room. General Statutes § 17a-
101a. He then complied with § 17a-101a when he relayed
his findings, namely, that there was a reasonable suspi-
cion of child abuse, to the department both orally and
via written documentation. Inasmuch as the plaintiffs
have not alleged that Creutz acted in bad faith during
the examination and reporting process,19 we conclude
that his actions constituted a report of suspected child
abuse protected by § 17a-101e (b), and, therefore, that
the trial court properly granted the medical defendants’
motion for summary judgment.

The judgment is affirmed.

In this opinion the other justices concurred.
1 General Statutes § 17a-101e (b) provides: ‘‘Any person, institution or
agency which, in good faith, makes, or in good faith does not make, the
report pursuant to sections 17a-101a to 17a-101d, inclusive, and 17a-103
shall be immune from any liability, civil or criminal, which might otherwise
be incurred or imposed and shall have the same immunity with respect to
any judicial proceeding which results from such report provided such person
did not perpetrate or cause such abuse or neglect.’’
2 The following department employees were named as defendants both
in their individual and official capacities: (1) Richard Days, a social worker;
(2) Nancy Leibeson-Davis, a social work supervisor; (3) Antonio Donis, a
program supervisor; and (4) Daphne Knight, a social worker.
3 The plaintiffs appealed from the judgment of the trial court to the Appel-
late Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
4 At her deposition, Welch testified that, on Friday, April 20, 2001, she
had told the parents that she thought they should take Matthew to his
pediatrician as soon as possible because she was worried that the bruising
and rash might be signs of an underlying medical problem. She explained
to them that she was a mandated reporter of suspected child abuse, and
that it was imperative that Matthew be seen by a physician. Welch testified
that, although the parents seemed agreeable to her suggestion, she contacted
their pediatrician’s office the following morning to follow up on her concerns.
Welch testified that she had attempted to contact the parents during the
remainder of the weekend, but was unsuccessful. The next time Welch
spoke with the pediatrician’s office was Tuesday, April 24, 2001, and the
receptionist informed her at that time that the office already had made a
report to the department.
5 Welch also reported that Manifold initially had expressed his desire to
cancel or postpone the speech therapy appointment, but was dissuaded
from doing so because there would be substantial delays in securing another
appointment. At Manifold’s deposition, he stated that he realized that his
son had the bruises and rash, and that he did not want his son’s appearance
to be ‘‘misconstrued’’ because he had heard some ‘‘horror stories’’ about
the department’s actions in similar circumstances.
6 Creutz testified at his deposition that the rash was actually petichiae,
which are skin discolorations that may be caused either by trauma or platelet
abnormalities. Creutz stated that they could have been caused by squeezing
the child, but not from eating a lot of candy.
7 The parents stated similarly with respect to Kaylee.
8 We note that the trial court’s grant of the medical defendants’ motion
for summary judgment is an appealable order. Although generally ‘‘[a] judg-
ment that disposes of only a part of a complaint is not a final judgment’’;
Cheryl Terry Enterprises, Ltd. v. Hartford, 262 Conn. 240, 246, 811 A.2d
1272 (2002); under Practice Book § 61-3, ‘‘a party may appeal if the partial
judgment disposes of all causes of action against a particular party or parties
.
.
.
.’’ Id.
We also note that, in addition to appearing as coappellees in this appeal;
see Practice Book § 60-4; the department defendants moved for summary
judgment with respect to the claims against them on the ground that they
were immune from liability pursuant to General Statutes § 4-165. The trial
court denied their motion on August 27, 2004, and their appeal from that
denial is pending in the Appellate Court.
9 We note that the plaintiffs appear to claim the existence of an issue of
material fact with respect to whether Creutz was acting within the scope
of § 17a-101e (b). We, however, disagree with their characterization of this
inquiry as an issue of fact. Resolution of this case turns on a quintessential
issue of law, namely, the application of an ambiguous statute to undis-
puted facts.
10 ‘‘Mandated reporters’’ must make an oral report to the department or
a law enforcement agency within twelve hours of obtaining ‘‘reasonable
cause to suspect or believe that a child has been abused or neglected or
placed in imminent risk of serious harm .
.
.
.’’ General Statutes § 17a-
101b (a). The mandated reporter then must submit a written report to the
department within forty-eight hours of the oral report. See General Statutes
§ 17a-101c. The required contents of the oral and written reports are pre-
scribed specifically by General Statutes § 17a-101d, and include information
necessary to identify and locate the child and the parents or other responsible

parties, the age and gender of the child, and other details about the cause,
nature and history of the suspected abuse, as well as any interventions
taken to ‘‘treat, provide shelter or otherwise assist the child.’’
11 Section 17a-101e (a) protects good faith reporters from discrimination
or retaliation by their employers. Section 17a-101e (c), however, guards
against intentional false reports of child abuse by providing fines or imprison-
ment for ‘‘[a]ny person who knowingly makes a false report of child abuse
or neglect . . . .’’
12 Although the legislature did not provide a definition for the statutory
term ‘‘report,’’ the ‘‘word’s ordinary meaning,’’ as determined appropriately
by review of its dictionary definition; Jagger v. Mohawk Mountain Ski Area,
Inc., 269 Conn. 672, 682, 849 A.2d 813 (2004); see also General Statutes § 1-
1 (a); suggests that Creutz’ actions constituted a ‘‘report.’’ See American
Heritage College Dictionary (4th Ed. 2002) (defining ‘‘report,’’ in relevant
part, as noun: ‘‘1. An account presented usu[ally] in detail’’; and as verb: ‘‘1.
To make or present an often official, formal, or regular account of. 2. To
relate or tell about; present. 3. To write or provide an account or summation
of for publication or broadcast. 4. To submit or relate the results of considera-
tions concerning. 5. To carry back and repeat to another’’).
13 We discuss the facts in Zamstein briefly to provide context for our
discussion of the court’s reasoning in that case. During proceedings to
dissolve their marriage, the plaintiff’s wife accused him of sexually abusing
their children; he was then arrested and prosecuted. Zamstein v. Marvasti,
supra, 240 Conn. 551. At the same time, the plaintiff’s wife brought the
children to the defendant for a sexual abuse evaluation. Id. He met with
the children and videotaped each session. Id. The plaintiff’s complaint
alleged that the defendant then provided copies of those videotapes for use
in the criminal proceedings; the defendant, however, had deleted exculpatory
material from the videotapes prior to providing them to the prosecutor. Id.,
551–52. After a three month trial wherein the defendant testified for the
state, the plaintiff was acquitted of the sexual abuse charges. Id., 552. The
plaintiff ‘‘alleged that the state’s attorney’s prosecution of the plaintiff would
not have continued but for the defendant’s provision of the edited video-
tapes.’’ Id.
14 The court acknowledged in Zamstein ‘‘that persons falsely charged with
sexual abuse of children on the basis of incorrect evaluations may suffer
great harm in both their social and personal relationships, and that such
accusations have the potential of causing serious damage to a person’s
reputation.’’ Zamstein v. Marvasti, supra, 240 Conn. 564. The court, how-
ever, nevertheless concluded that the greater social harm would be allowing
the sexual abuse of children to go undetected. Id.
15 We note briefly that the legislative history of the immunity provision,
while silent with respect to the precise issue in the present case, does,
however, demonstrate the legislature’s awareness of the importance of the
medical community’s role in the child abuse investigation and reporting
process, and the health care professionals’ reluctance to be involved in the
process in the absence of immunity from liability. Section 17a-101e (b)
initially was enacted in 1965 as § 3 of Connecticut’s first mandatory reporting
statute, Public Acts 1965, No. 580, and applied only to physicians and sur-
geons. Moving for passage of the bill that was enacted as Public Act 580,
Senator Gloria Schaffer remarked that mandatory reporting was ‘‘vital to
both the health and the welfare of the children of our state’’ because many
cases of child abuse were seen, but unreported by physicians. 11 S. Proc.,
Pt. 5, 1965 Sess., p. 1909. Indeed, undisputed testimony before the legislative
committees demonstrated that the medical community considered the immu-
nity provision to be vital to the success of the mandatory reporting statute.
See Conn. Joint Standing Committee Hearings, Judiciary and Governmental
Functions, 1965 Sess., p. 350 (testimony of legislative chairman of state
medical society describing immunity as ‘‘essential’’ and stating that lack of
immunity resulted in physicians’ reluctance to report suspected abuse
cases); Conn. Joint Standing Committee Hearings, Public Welfare and
Humane Institutions, 1965 Sess., p. 89 (testimony of commissioner of mental
health stating that mandatory reporting legislation ‘‘would be entirely ineffec-
tive, no matter what the legislation and no matter what the penalties unless
there is a provision for exemption from any civil or criminal liability’’).
Further understanding of the impact of liability fears on the medical commu-
nity was shown in 1997, when the legislature in Public Acts 1997, No. 97-
319, § 12, amended § 17a-101e (b) to allow immunity for physicians and
other reporters who ‘‘in good faith, [do] not make,’’ such reports. 40 H.R.
Proc., Pt. 18, 1997 Sess., p. 6593, remarks of Explaining the change, Represen-
tative Ellen Scalettar stated that it was meant to add some ‘‘balance’’ and

address the overreporting of child abuse by extending immunity to those
who determine in the ‘‘exercise[e] [of] their professional judgment’’ that
there has been no abuse. Id., p. 6594.
16 General Statutes § 17a-101f provides: ‘‘Any physician examining a child
with respect to whom abuse or neglect is suspected shall have the right to
keep such child in the custody of a hospital for no longer than ninety-six
hours in order to perform diagnostic tests and procedures necessary to the
detection of child abuse or neglect and to provide necessary medical care
with or without the consent of such child’s parents or guardian or other
person responsible for the child’s care, provided the physician has made
reasonable attempts to (1) advise such child’s parents or guardian or other
person responsible for the child’s care that he suspects the child has been
abused or neglected and (2) obtain consent of such child’s parents or guard-
ian or other person responsible for the child’s care. In addition, such physi-
cian may take or cause to be taken photographs of the area of trauma visible
on a child who is the subject of such report without the consent of such
child’s parents or guardian or other person responsible for the child’s care.
All such photographs or copies thereof shall be sent to the local police
department and the Department of Children and Families. The expenses
for such care and such diagnostic tests and procedures, if not covered by
insurance, shall be paid by the Commissioner of Children and Families,
provided the state may recover such costs from the parent if the parent has
been found by a court to have abused or neglected such child.’’
17 Indeed, § 17a-101f evinces the legislature’s understanding that not all
suspicions of child abuse will be determined correctly, as ‘‘[t]he expenses
for such care and such diagnostic tests and procedures, if not covered by
insurance, shall be paid by the Commissioner of Children and Families,
provided the state may recover such costs from the parent if the parent
has been found by a court to have abused or neglected such child.’’ (Empha-
sis added.)
18 See also Michaels v. Gordon, 211 Ga. App. 470, 471, 439 S.E.2d 722 (1993)
(concluding that psychologist who interviewed two children at request of
children’s services for investigation of possible sexual abuse was entitled
to immunity from malpractice liability per statute providing that ‘‘[a]ny
person .
.
. participating in the making of a report .
.
. or participating
in any judicial proceeding or any other proceeding resulting [from such a
report of suspected child abuse] shall in so doing be immune from any civil
or criminal liability that might otherwise be incurred or imposed’’ [internal
quotation marks omitted]), cert. denied, 1994 Ga. LEXIS 529 (February 18,
1994); Doe v. Winny, supra, 327 Ill. App. 3d 680–81 (concluding that physician
who performed psychiatric evaluation of children at request of child welfare
department was entitled to statutory immunity for damages ‘‘directly related’’
to diagnosis of abuse in course of investigation, but not for damages stem-
ming from improper subsequent treatment); Walker v. Pollock, 981 S.W.2d
226, 227 (Tex. App. 1998) (concluding that physician hired by child protective
services to perform court-ordered neurological evaluation in child abuse
proceeding was immune from malpractice liability under statute providing
that ‘‘[a] person acting in good faith who reports or assists in the investigation
of a report of alleged child abuse or neglect or who testifies or otherwise
participates in a judicial proceeding arising from a report .
.
. of alleged
child abuse or neglect is immune from civil or criminal liability that might
be incurred or imposed’’ [internal quotation marks omitted]).
19 Acknowledging that ‘‘[i]t is not that the doctor meant to do harm,’’ the
plaintiffs argue for the first time in their reply brief responding to the
arguments of the medical defendants that their allegations of medical mal-
practice substitute for or are evidence of bad faith. We decline to reach this
argument because it is well settled that arguments may not be raised for
the first time in reply briefs. See, e.g., Calcano v. Calcano, 257 Conn. 230,
244, 777 A.2d 633 (2001).

Maresca v. Mancall

Maresca v. Mancall,
Civil No. 01-5355 (E.D. Pa. June 20, 2003)

The
United States District Court for the Eastern District of Pennsylvania denied
several motions brought by parties in a medical malpractice action against a
physician and a hospital. The patient alleged medical malpractice against the
treating physician and the hospital, as well as vicarious liability and corporate
negligence theories against the hospital. The patient argued that the physician
failed to diagnosis a condition and failed to maintain complete medical records.
Both the hospital and physician moved to dismiss the suit arguing the malpractice
claim was barred by a two-year statute of limitations, and that the vicarious
liability and corporate negligence claims were supported by insufficient information.
The court held that the statute of limitations did not bar the malpractice claims
because the claims did not accrue until the patient discovered the condition.
With regards to the vicarious liability and corporate negligence claims, the
court held that unresolved issues establishing the precise relationship between
the hospital and physician prevented summary judgment. The patient also moved
for partial summary judgment regarding the incomplete medical records claims.
The patient argued that the physician and the hospital violated state regulations.
The court denied the patient’s motion, holding that the purpose of the state
regulations was to protect the interests of the public generally and not the
interests of a particular group. Finally, the patient moved to exclude a portion
of a medical form that contained an entry by unsigned, unidentified medical
personnel arguing it lacked trustworthiness. The court denied the motion holding
that the form did not unfairly prejudice the patient.

Marshall v. Hartford Hosp.

******************************************************
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******************************************************

KAILA MARSHALL v. HARTFORD HOSPITAL ET AL.
(AC 20345)

Foti, Spear and Dupont, Js.

Argued May 1—officially released September 25, 2001

Counsel

William J. Sweeney, Jr., with whom, on the brief, was
Katarzyna Maluszewski, for the appellant (plaintiff).

Donna R. Zito, with whom, on the brief, was Stephen
V. Manning, for the appellees (defendants).

Opinion

DUPONT, J. The primary issues in this medical mal-
practice action brought by a mother on behalf of her
minor child are whether there was a unity of interest
between the two defendants, Victor C. Herson, a physi-
cian (defendant physician), and Hartford Hospital
(defendant hospital), for purposes of determining the
number of peremptory challenges in the selection of a
jury, and whether the trial court properly directed a
verdict for the defendant physician and refused to set
aside a jury verdict for the defendant hospital. We affirm
the judgment of the trial court.

The plaintiff, Kaila Marshall, was born prematurely
at Hartford Hospital. Six days after birth, she developed
complications from the insertion of an intravenous cath-
eter that resulted in the loss of her fingers on one hand.1
The plaintiff alleged that the defendant hospital and the
defendant physician, who was the attending neonatolo-
gist in the defendant hospital’s neonatal intensive care
unit, were negligent in diagnosing and treating the com-
plications. At the conclusion of the plaintiff’s case, the
court directed a verdict in favor of the defendant physi-
cian. At the conclusion of the entire case, the jury
returned a verdict in favor of the defendant hospital,2
which the court refused to set aside.

In the first count against the defendant hospital, the
plaintiff alleged that the negligence and carelessness
of the defendant hospital through its agents, servants
or employees, or all of them, who were acting within
the scope of their agency, service or employment,
caused her injuries, because, after discerning that the
IV insertion had blocked the flow of blood to her hand,
they failed to prevent necrosis3 and committed acts that
promoted it. That allegation fails to identify a specific
employee, servant or agent. The complaint also alleged
that specific employees, not including the defendant
physician, were negligent and careless because they (1)
applied warm soaks to the plaintiff’s wrist and hand,
which promoted necrosis, and (2) failed to call a physi-
cian immediately. The complaint further alleged that
the defendant physician, as an agent, servant or
employee, was negligent in that he neglected to attend
to the plaintiff in a timely fashion, thereby losing or
decreasing the chance for successful treatment. The
other allegations as to the defendant hospital do not
name specific employees, agents or servants, but allege
failure to treat the plaintiff in a timely fashion, lack of
a sufficiently trained or experienced staff to deal with
the plaintiff’s condition, and failure to train its staff
properly for the diagnosis and treatment of arterial
insufficiency.

The plaintiff’s second count was against the defen-
dant physician in his individual capacity and described
him as an attending physician in the neonatal unit of
the defendant hospital. The defendant physician alleg-
edly did not exercise the degree of skill or care ordi-
narily exercised by physicians in that (1) he failed to
attend to the plaintiff in a timely fashion, thereby losing
or minimizing the chance for successful treatment, and
(2) he neglected to obtain consultations from other
physicians with more experience in dealing with the
plaintiff’s condition so as to lose or decrease the chance
for successful treatment.

The plaintiff’s complaint as outlined was the amended
complaint dated June 16, 1999, and was in effect at
the time the trial began. It is, therefore, the complaint
governing our discussion of the directed verdict for the

defendant physician and the court’s refusal to set aside
the verdict for the defendant hospital. A prior com-
plaint, dated January 6, 1998, in effect at the time the
court ruled on the number of peremptory challenges
for the parties, governs that issue.

Certain facts are not disputed. The plaintiff weighed
slightly more than one pound at birth and was experi-
encing poor blood flow to her right hand. The unit
nurses used various treatments to alleviate the condi-
tion, but her condition did not improve. Some four
hours after the condition was first noticed, the defen-
dant physician arrived for his regular shift and ordered
the application of nitroglycerin paste to the plaintiff’s
hand, which order was not carried out until three hours
later. The defendant physician consulted other physi-
cians later that same day as to other possibilities. No
other treatment, however, was used, gangrene devel-
oped and the plaintiff’s right-hand fingers autoampu-
tated.

I

The court, Wollenberg, J., presided over jury selec-
tion. That court ruled on June 8, 1999, that no unity
of interest between the defendant physician and the
defendant hospital existed and, consequently, allowed
each defendant four peremptory challenges.4

The court, Graham, J., presiding, reviewed the
record and consulted with counsel in connection with
the plaintiff’s motion for rectification and articulation
regarding peremptory challenges. Judge Graham found
that nine jurors were chosen after Judge Wollenberg’s
ruling, that the plaintiff had four peremptory challenges
at the start of jury selection, that the defendants
together had eight peremptory challenges, that the
plaintiff had used all four of her challenges prior to
the selection of the ninth juror, that two jurors were
excused after the selection of the ninth juror prior to
trial, that the court gave the plaintiff and the defendants
each one extra challenge, that the plaintiff used that
extra challenge prior to the selection of two additional
jurors, and that in total, the defendants had nine chal-
lenges and the plaintiff five challenges.

Judge Graham reviewed Judge Wollenberg’s ruling
as to the number of peremptory challenges allowed the
parties, and also concluded that the defendant physi-
cian and the defendant hospital did not have a unity of
interest. Judge Graham noted that
the allegations
against the defendant hospital were based on claims of
commission and omission by the nurses as well as the
defendant physician. Count two contained allegations
against the defendant physician and were based on
his own claimed acts and omissions. The court further
noted that the time frame for the nurses’ alleged negli-
gence preceded the defendant physician’s alleged negli-
gence,5 and that the basis of the defendant hospital’s

liability differed from the basis of the defendant physi-
cian’s liability and could differ as to the outcome of the
liability question. Judge Graham, therefore, concluded
that there was no unity of interest between the defen-
dant physician and the defendant hospital, and that the
ruling as to peremptory challenges was not a basis for
setting aside the directed verdict in favor of the defen-
dant physician or the jury verdict in favor of the defen-
dant hospital. We agree with the trial court.

The plaintiff argues that
the court
improperly
restricted her to four peremptory challenges while
allowing the defendants eight challenges, which ruling
affected the outcome of the trial. The plaintiff reasons
that if the court had limited the defendants to four
peremptory challenges, a wholly different jury panel
would have been selected and that, because a party can
never reconstruct the use of challenges, a new trial is
needed. The plaintiff claims that a unity of interest
exists because the defendant physician is an employee
of the defendant hospital, thereby making the defendant
hospital liable for his negligent acts, and because the
defendant physician and the defendant hospital do not
have an adverse relationship. The plaintiff admits that
the question involves the trial court’s discretion. See
Walsh v. Stonington Water Pollution Control Author-
ity, 250 Conn. 443, 465, 736 A.2d 811 (1999); Rivera v.
Saint Francis Hospital & Medical Center, 55 Conn.
App. 460, 463, 738 A.2d 1151 (1999).

If the plaintiff is correct, a new trial would be neces-
sary; Krause v. Almor Homes, Inc., 147 Conn. 333, 336,
160 A.2d 753 (1960); Rivera v. Saint Francis Hospital &
Medical Center, supra, 55 Conn. App. 464; and the issues
raised in her other claims would not be reached.6

A review of Connecticut cases on the subject of
peremptory challenges is instructive. Those cases aris-
ing before 1993, when the legislature amended the stat-
ute concerning peremptory challenges by adding and
then defining the words ‘‘unity of interest’’; see footnote
4; hold that the words ‘‘each party,’’ as used in General
Statutes (1930 Rev.) § 5577, the forerunner of General
Statutes § 51-241, mean every plaintiff and every defen-
dant is entitled to his, her or its own peremptory chal-
lenges. Mourison v. Hansen, 128 Conn. 62, 67, 20 A.2d
84 (1941); Commercial Union Ins. Co. v. Frank Per-
rotti & Sons, Inc., 20 Conn. App. 253, 262, 566 A.2d 431
(1989). This is so despite the recognition in at least
one Connecticut case that other states have interpreted
statutes containing similar language to mean that all
parties who are one side of an action must share the
statutory number of peremptory challenges unless their
interests are diverse or antagonistic. Mourison v. Han-
sen, supra, 67.

Prior to 1993, a father who owned a car and a son
who drove that car, in an action arising out of the
negligence of the driver, were entitled to two sets of

peremptory challenges because each was a party to the
action, although their interests were not antagonistic.
Id., 67–68. Other cases decided prior to 1993 are similar
in result. Both of the plaintiffs, an insurance company
seeking reimbursement for sums paid to its insured and
the intervening insured party, are each entitled to the
statutory number of challenges; Commercial Union
Ins. Co. v. Frank Perrotti & Sons, Inc., supra, 20 Conn.
App. 262; as is true of a plaintiff employee and his
employer who had made payments on the employee’s
behalf under the Workers’ Compensation Act, General
Statutes § 31-275 et seq.; Reid v. New Haven, 133 Conn.
446, 448–49, 52 A.2d 140 (1947); and true for a minor
child and his mother who sought reimbursement for
moneys paid for the medical and hospital expenses
of her son. Krause v. Almor Homes, Inc., supra, 147
Conn. 335–36.

In Reid and Krause, the rationale for allowing each
plaintiff the statutory number of peremptory challenges
was that each plaintiff had the right to bring a separate
action. A similar result was reached in Batick v. Sey-
mour, 186 Conn. 632, 443 A.2d 471 (1982), a pre-1993
case. In Batick, the plaintiff brought a two count com-
plaint for personal injuries against a defendant husband
and for the fraudulent conveyance by the defendant
husband to his defendant wife. The court reasoned that
because the same jury would be used for the trial of
the two counts, it was proper to allow both defendants
to have four peremptory challenges each during jury
selection, even though the defendant wife’s trial would
not take place unless the defendant husband had been
held liable on the first count. Id., 642.

Until 1993, Connecticut appellate courts liberally
interpreted the statute governing peremptory chal-
lenges. In all of the civil cases of which we are aware,
each party, whether plaintiff or defendant, regardless
of whether the interests were substantially similar, was
entitled to four peremptory challenges if alternate
jurors were chosen.

The question now becomes whether the amendment
to § 51-241 in Public Acts 1993, No. 93-176, § 1, restricted
in any way the previous liberality espoused in the cited
cases. If the multiple parties do not have a unity of
interest because their interests are substantially dissim-
ilar, the court must treat them individually for purposes
of the number of peremptory challenges they receive.
General Statutes § 51-241. To that extent, the amend-
ment to the statute has changed nothing. If, however,
there is a unity of interest, as found within the discretion
of the trial court, the question is whether the court’s
discretion extends to allowing those with a unity of
interest more than four challenges.

The legislative history supports a conclusion that the
amendment was intended to cure unfairness in the com-
position of a jury that might occur where one party

with only four challenges is the lone plaintiff or defen-
dant and is faced with multiple adversarial parties with
four challenges each.7 See J. Steigelfest, ‘‘The Unity of
Interest Rule and Peremptory Challenges in Connecti-
cut,’’ 69 Conn. B.J. 353 (1995). The legislative history
contains statements that provide examples of unity of
interest situations, such as principal and agent, automo-
bile owner and operator, employer and employee acting
within the scope of his or her employment or plaintiffs
all
injured in the same automobile accident. The
remarks in the legislature indicate that in a medical
malpractice action against a hospital and its physicians,
unity of interest may be lacking despite the existence
of an employee-employer relationship. 36 H.R. Proc.,
Pt. 16, 1993 Sess., pp. 5558–62. Thus, some of the pre-
1993 cases that come within the examples as cited in
the legislative history would now require a conclusion
that there was a unity of interest. Although that is so, the
question would then be whether, in spite of a conclusion
that there is a unity of interest, the court could exercise
its discretion and grant parties with that unity their own
peremptory challenges.

A recent Supreme Court case addresses that question.
See Walsh v. Stonington Water Pollution Control
Authority, supra, 250 Conn. 443. In Walsh, the plaintiffs
were two married couples who brought an action
against the town of Stonington and its water pollution
control authority. The plaintiffs were allowed sixteen
peremptory challenges to the town’s four challenges.
Walsh analyzes § 51-241 and concludes that ‘‘[t]he deci-
sion of whether several plaintiffs or defendants will be
considered a single party for the purpose of making
challenges is, therefore, within the discretion of the
trial court.’’ Id., 465. Walsh states that if the court
decides there is a unity of interest, the court may, in
its discretion, determine whether that unity will trigger
a limit on the number of peremptory challenges to be
granted. Id., 465–66. In other words, even if there is
unity of interest, which would allow a trial court to
treat two or more defendants or plaintiffs as one for
purposes of peremptory challenges, the court may nev-
ertheless allow each defendant or plaintiff to have the
statutory number of challenges.

Beach v. Regional School District Number 13, 42
Conn. App. 542, 682 A.2d 118, cert. denied, 239 Conn.
939, 684 A.2d 710 (1996); Glass v. Peter Mitchell Con-
struction Leasing & Development Corp., 50 Conn. App.
539, 718 A.2d 79, cert. granted in part, 247 Conn. 938,
723 A.2d 317 (1998) (appeal withdrawn July 6, 1999);
and Rivera v. Saint Francis Hospital & Medical Center,
supra, 55 Conn. App. 464, all decided after the 1993
amendment, contain the same principles as those
expounded in Walsh. In Beach, which Walsh cites
approvingly, there was a one count complaint, identical
allegations of negligence against all three defendants,
one counsel for all three defendants, identical answers

and special defenses, the same insurance carrier and
the same indemnification agreement for all three defen-
dants. On the basis of those facts, but recognizing that
each defendant had a different duty, the court con-
cluded that a jury could determine that each party was
negligent but in a distinct manner and, therefore, there
was no unity of interest. Beach v. Regional School Dis-
trict Number 13, supra, 551. In Glass, which Walsh also
cites approvingly, this court determined that there was
no unity of interest among five defendants because they
were sufficiently antagonistic, a jury could find that
each was negligent in a separate and distinct manner,
and that the duties of each were different. Glass v. Peter
Mitchell Construction Leasing & Development Corp.,
supra, 546–47. Rivera, the last case in this trilogy,
involved a plaintiff who brought an action against a
hospital and two physicians. There was no unity of
interest, although the physicians were employed by the
hospital and they had the same attorney. The lack of
unity of interest arose out of the facts that there was
no surgical procedure in which both physicians were
involved, the claims against the defendants were not
identical, and it was possible for the plaintiff to prove
one specification of negligence that proximately caused
his injury as to one physician, but not the other or
not the hospital. Rivera v. Saint Francis Hospital &
Medical Center, supra, 466.

On the basis of the cases cited, we conclude that
§ 51-241 allows the court to give each party, bound
by a unity of interest with another party, individual
peremptories or not, as the court, in its discretion, sees
fit. The 1993 amendment establishes, consistent with
case law then existing, that those who have no unity
of interest must receive the allowable number of indi-
vidual, statutory peremptory challenges. The amend-
ment has only changed the law in that the court need
not, in every case, give every party having a unity of
interest a statutory number of challenges. We are aware
of no Connecticut case, pre-1993 or post-1993, that has
concluded that a court acted improperly by granting a
party peremptory challenges; see Walsh v. Stonington
Water Pollution Control Authority, supra, 250 Conn.
466; Batick v. Seymour, supra, 186 Conn. 642; Reid v.
New Haven, supra, 133 Conn. 449; Mourison v. Hansen,
supra, 128 Conn. 67; Beach v. Regional School District
Number 13, supra, 42 Conn. App. 552; but are cognizant
of cases that have concluded that the failure to give a
party peremptory challenges was improper. Krause v.
Almor Homes, Inc., supra, 147 Conn. 336; Rivera v.
Saint Francis Hospital & Medical Center, supra, 55
Conn. App. 466; Glass v. Peter Mitchell Construction
Leasing & Development Center, supra, 50 Conn. App.
547; Commercial Union Ins. Co. v. Frank Perrotti &
Sons, Inc., supra, 20 Conn. App. 263.

Our case law, therefore, remains liberal in its interpre-
tation of General Statutes § 51-241 and General Statutes

§ 51-243 as to the granting of peremptory challenges.
In doing so, the cases impliedly are mindful of the con-
stitution of Connecticut, article first, § 19, as amended
by article four of the amendments, which provides in
relevant part: ‘‘In all civil and criminal actions tried by
a jury, the parties shall have the right to challenge jurors
peremptorily, the number of such challenges to be
established by law.’’ Reversible error rarely occurs by
allowing a party more peremptory challenges than are
provided by law. See State v. Hancich, 200 Conn. 615,
626, 513 A.2d 638 (1986).

The primary test to determine the existence of a unity
of interest is whether there are separate issues of liabil-
ity as to the two entities or persons. If the liability bases
differ, there is no unity of interest. See Beach v. Regional
School District Number 13, supra, 42 Conn. App. 550–
51. Here, the question is whether the defendant physi-
cian’s alleged negligence and the defendant hospital’s
alleged negligence differ in that the liability of each is
separate and distinct from the liability of the other.

The nurses’ negligence on which the defendant hospi-
tal’s negligence was allegedly founded consisted of their
application of warm soaks to the plaintiff’s hand and
their failure to call for a physician’s assistance immedi-
ately. The defendant physician’s negligence on which
the defendant hospital’s negligence was founded con-
sisted of his failure to attend to the plaintiff until eight
hours after being notified of the problem. The plaintiff
also alleged that the defendant hospital was negligent in
that unnamed employees had failed to prevent necrosis
and had promoted it, that there was a failure to treat
timely, a lack of sufficiently trained or experienced staff
and a failure to train its staff properly.

The separate count, involving only the defendant phy-
sician, alleged that he did not exercise the degree of
skill or care ordinarily exercised by physicians because
he did not attend to the child until approximately eight
hours after being notified of her condition, and he did
not obtain consultations with other physicians.

Any negligence of the defendant hospital’s employ-
ees, the nurses, arising from their actions or their inac-
tions occurred before the defendant physician arrived
on the scene. The defendant physician, on the facts as
alleged, was not involved in the nurses’ negligence, and
the nurses were not involved in the defendant physi-
cian’s negligence. Thus, a jury could find the defendant
hospital liable for the acts of its staff and nurses, exclud-
ing the defendant physician, which finding would con-
stitute a different basis for liability. Moreover, a hospital
may face direct liability for failure to adopt rules or
protocols or failure to train its staff or physician employ-
ees. The plaintiff could have brought the action against
the defendant physician without naming the defendant
hospital as an additional defendant.

Although the defendant physician is an employee of
the defendant hospital, he and it have a potentially
adverse relationship. The second count against the
defendant physician asserts an independent liability,
whereas the first count alleges the defendant hospital’s
liability for the acts of its employees, agents or servants,
including the defendant physician. The defendant physi-
cian’s interest in escaping liability on count two could
be adverse to the defendant hospital’s liability on count
one since he might argue and present evidence that
the negligence of other employees, and not his own,
proximately caused the plaintiff’s injuries. A jury could
thus simultaneously find the defendant hospital liable
because others or another of its employees were negli-
gent, which negligence proximately caused the plain-
tiff’s injuries, and the defendant physician not liable
because nothing that he did or failed to do proximately
caused the plaintiff’s injuries. The court correctly dis-
cerned that the claims against the two defendants were
distinct, that is, substantially dissimilar. It should also
be noted that even if the court found a unity of interest,
it could, in its own discretion, give each defendant four
peremptory challenges. See Walsh v. Stonington Water
Pollution Control Authority, supra, 250 Conn. 465–66.
We hold that the trial court did not abuse its discretion
in allowing the defendant physician and defendant hos-
pital each to have four peremptory challenges because
they lacked a unity of interest.

II

The plaintiff next claims that the court improperly
directed a verdict in favor of the defendant physician
on the ground that the testimony of the plaintiff’s expert
failed to establish that the defendant physician’s negli-
gence proximately caused the plaintiff’s injuries. We
disagree.

We begin with a brief discussion of the well settled
principles applicable to directed verdicts and proximate
cause. ‘‘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,
(2001).
A.2d
734–35,

The plaintiff and the defendant physician disagree
as to whether the plaintiff’s expert, Ronald Poland, a
physician with a background in pediatrics and neonatol-
ogy, established that the defendant physician had
breached the standard of care owed to the plaintiff and
whether Poland established that such breach proxi-
mately caused the plaintiff’s injuries. The court allowed
Poland to testify, agreeing that he qualified as an expert.
The court found that Poland did not testify that the
defendant physician had violated the standard of care

owed to the plaintiff or that either of the alleged acts
of negligence, failure to attend to the plaintiff in a timely
manner or failure to consult with others, was causally
connected to the decreased chance for successful treat-
ment or to the loss of the plaintiff’s fingers.

The court stated during the hearing on the defendant
physician’s motion for a directed verdict8 that the plain-
tiff did not elicit Poland’s opinion as to whether the
defendant physician had violated the standard of care9
or an opinion as to whether a causal connection
between the lost chance claim and the injury existed.10
The court concluded that unequivocal expert medical
testimony was required as to both the alleged breach of
the standard of care and the causal connection between
that alleged breach and the injury because the level of
sophistication needed to understand that connection
was beyond the ordinary knowledge of a jury.

‘‘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. Expert medical opinion evidence is
usually required to show the cause of an injury or dis-
ease because the medical effect on the human system
of the infliction of injuries is generally not within the
sphere of the common knowledge of the lay person.’’
(Internal quotation marks omitted.) Id., 738.

The medical malpractice claim in this case is a ‘‘lost
chance’’ or ‘‘loss of chance’’ claim because the com-
plaint alleges a failure to treat promptly or to obtain
consultations from other physicians, thereby ‘‘los[ing]
or minimiz[ing] the chances for successful treatment.’’
In such cases, a plaintiff proves his or her entitlement
to recovery if he or she provides evidence to allow
a jury to conclude that, more probably than not, the
defendant was negligent and that negligence proxi-
mately caused the plaintiff’s injury.

In this case, no exceptions exist to excuse the plaintiff
from producing expert medical testimony to prove her
case. The alleged negligence was not gross, the medical
condition was not obvious, and the injury and the defen-
dant physician’s connection with the injury was not
obvious enough to allow a lay juror to form a reasonable
belief as to the negligence of the defendant physician.
See Shegog v. Zabrecky, 36 Conn. App. 737, 746–47,
654 A.2d 771, cert. denied, 232 Conn. 922, 656 A.2d
670 (1995).

Poland had a residency in pediatrics and a fellowship
in neonatal-perinatal medicine. Neonatology is the
branch of medicine dealing with disorders of newborn
infants, and perinatal medicine refers to medicine
around the time of birth. Although the court properly
accepted Poland as an expert witness, a thorough

review of the transcript does not reveal that he clearly
testified that the defendant physician had breached a
standard of care owed to the plaintiff or that any action
or inaction by him caused the plaintiff’s injury. We,
therefore, affirm the judgment for the defendant physi-
cian that followed the directed verdict in his favor.

III

The plaintiff next claims that the court should have
granted her motion to set aside the jury verdict for the
defendant hospital primarily because the court improp-
erly allowed three physicians to testify as expert wit-
nesses for the defendant. The plaintiff challenges the
qualifications of John Grossman, a specialist in pediat-
ric surgery, Steven Ruby, a professor of surgery at the
University of Connecticut School of Medicine with subs-
pecialty training in vascular surgery, and William Hel-
lenbrand, a professor of pediatrics at Yale University
School of Medicine who is board certified in both pedi-
atrics and pediatric cardiology. The three experts testi-
fied as to the standard of care the hospital staff should
have given the plaintiff with regard to the warm soaks
and the failure to call a physician in a timely fashion.
The plaintiff claims that
the defendant hospital’s
experts were not neonatologists and therefore lacked
the statutorily mandated qualifications to testify as
experts. The plaintiff also claims that the experts lacked
sufficient training, expertise and knowledge from the
practice or teaching in a related field of medicine to
testify as to the standard of care in the field of neo-
nate pediatrics.

The standard of review of the denial of a motion to
set aside a verdict is whether the trial court clearly
abused its discretion. Honan v. Dimyan, 52 Conn. App.
123, 129, 726 A.2d 613, cert. denied, 249 Conn. 909, 733
A.2d 227 (1999). Appellate courts are disinclined to
disturb jury verdicts because the trial court, from its
vantage, is better able to assess the entire trial and
because we review the evidence in the light most favor-
able to sustaining that verdict. Gaudio v. Griffin Health
Services Corp., 249 Conn. 523, 534, 733 A.2d 197 (1999).
We conclude that, given those standards, the court prop-
erly refused to set aside the verdict for the defendant
hospital.

The defendant hospital’s experts who were chal-
lenged were two surgeons, Grossman and Ruby, and a
pediatric cardiologist, Hellenbrand. Poland, the plain-
tiff’s expert, had testified that the hospital employees
had breached the standard of care owed to the plaintiff
in applying warm soaks and failing to call a physician
immediately upon noticing the plaintiff’s condition.
Poland further testified that pediatric cardiologists are
specialists with considerable expertise in the manage-
ment of catheter complications and that he would defer
to a surgeon with regard to appropriate surgical treat-
ment for an ischemic injury11 in a premature neonate.

He also stated that in terms of medical treatment for
the same type of injury, he would consult a surgeon.

Grossman was a surgeon with a specialty in pediatric
surgery, with an emphasis on surgery of the hand, upper
extremity and peripheral nerves. He had operated on
neonates for problems related to vascular occlusion.

Ruby, the second challenged expert, is board certified
in general surgery with subspecialty training and certifi-
cation in vascular surgery. He testified that he had had
substantial experience in treating vascular occlusions,
that vascular surgery for a child and an adult involves
the same principles and that he knew of no vascular
surgeon in Connecticut who specialized in peripheral
vascular surgery for neonates. The defendant hospital
only offered Ruby’s testimony with regard to treatment
options available when the ischemic complication was
first noticed.

The plaintiff also argues that the defendant hospital’s
third expert, Hellenbrand, was not qualified because he
was not board certified in neonatology. Hellenbrand
was a pediatric cardiologist, a specialty Poland agreed
would have expertise in the management of catheters.
Hellenbrand treated newborns frequently in the setting
of neonatal intensive care units and had experience in
the management of catheter complications.

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 knowl-
edge 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, experi-
ence 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.’’

We agree with the trial court that the defendant hospi-
tal’s experts were qualified to testify. Section 52-184c
allows a health care provider trained and experienced
in a medical specialty similar to that specialty in ques-
tion to testify as an expert. The defendant hospital’s
experts had such a specialty. Furthermore, §§ 7-212 and
7-4 (a)13 of the Connecticut Code of Evidence also pro-
vide a basis for the court’s acceptance of the testimony
of the defendant hospital’s experts.

There are many Connecticut cases that adhere to
the liberalization of evidentiary rules allowing expert
medical testimony in a medical malpractice action when
there is a similarity of practice. See, e.g., Pool v. Bell,
209 Conn. 536, 542–43, 551 A.2d 1254 (1989); Katsetos

v. Nolan, 170 Conn. 637, 646–47, 368 A.2d 172 (1976);
Fitzmaurice v. Flynn, 167 Conn. 609, 618, 356 A.2d 887
(1975); Marshall v. Yale Podiatry Group, 5 Conn. App.
5, 7–12, 496 A.2d 529 (1985). Medical specialties overlap,
and it is within a court’s discretion to consider that fact
in exercising its discretion to deem the witness qualified
to testify. It is not the artificial classification of a witness
by title that governs the admissibility of the testimony,
but the scope of the witness’s knowledge of the particu-
lar condition.

On the basis of our review of the expert testimony
offered by the defendant hospital’s three experts, we
conclude that the court acted properly and did not
abuse its discretion in not disturbing the jury verdict
in favor of the defendant hospital. The evidence was
sufficient for such a verdict.

The judgment is affirmed.

In this opinion the other judges concurred.
1 Paragraph six of count one of the plaintiff’s complaint alleged that during
the course of a change in the IV feed in the plaintiff’s right wrist ‘‘the IV
insertion missed the proper vein .
.
. and obstructed the flow of blood to
her right hand.’’ In the allegations of negligence contained in paragraph
eight of that count, there is no contention that the use of the IV feed was
inappropriate. The insertion of the catheter was, however, described as
‘‘improper.’’ Count one relates to the defendant hospital’s negligence.
2 The plaintiff originally named a third defendant, a nurse in the neonatal
unit of the defendant hospital, but withdrew the action as to the nurse
before trial. Thus, the original complaint consisted of three counts—count
one against the defendant hospital, count two against the defendant physi-
cian and count three against the nurse.
3 Necrosis is the death of living tissue, especially when it is still in contact
with the living parts around it.
4 General Statutes § 51-241 provides: ‘‘On the trial of any civil action to a
jury, each party may challenge peremptorily three jurors. Where the court
determines a unity of interest exists, several plaintiffs or several defendants
may be considered as a single party for the purpose of making challenges,
or the court may allow additional peremptory challenges and permit them
to be exercised separately or jointly. For the purposes of this section, a
‘unity of interest’ means that the interests of the several plaintiffs or of the
several defendants are substantially similar.’’
The last two sentences of the statute were added by amendment in Public
Acts 1993, No. 93-176, § 1.
General Statutes § 51-243 (a) provides in relevant part: ‘‘In any case when
the court directs the selection of alternate jurors, each party may perempto-
rily challenge four jurors. Where the court determines a unity of interest
exists, several plaintiffs or several defendants may be considered as a single
party for the purpose of making challenges, or the court may allow additional
peremptory challenges and permit them to be exercised separately or jointly.
For the purposes of this subsection, a ‘unity of interest’ means that the
interests of the several plaintiffs or of the several defendants are substan-
tially similar.’’
5 The complaint dated January 6, 1998, in effect at the time Judge Wollenb-
erg ruled, contained allegations of negligence in count one as to the defen-
dant hospital as follows: ‘‘The staff nurse or nurses who discovered or first
treated the [plaintiff] after the discovery of the improper insertion failed or
neglected to call immediately a physician, but rather waited approximately
three to four hours to do so, or until approximately 10 a.m. on December
27, 1995,’’ and ‘‘the attending physician .
.
. failed .
.
. to attend to the
[plaintiff] until . . . approximately eight hours after being notified of the
problem.’’ It also contained an allegation in count two as to the defendant
physician that ‘‘although he was called by the staff nurse(s) to attend to
the [plaintiff] after discovery of the improper IV insertion, he failed or
neglected to attend to the [plaintiff] until approximately 6 p.m. on December
27, 1995, or approximately eight hours after being notified of the problem.’’

6 If a new trial is not necessary because the court’s ruling as to the
peremptory challenges issue was proper, but is necessary because both the
directed verdict and the jury verdict are improper, the issue of peremptory
challenges will likely recur, and so we discuss it. We recognize that if the
plaintiff is correct as to only one of the latter two claims and a new trial
is necessary as to only the defendant physician or only the defendant hospi-
tal, the issue of the number of peremptory challenges will be moot because
the unity of interest issue will no longer exist.
7 Prior to the amendment of General Statutes § 51-241 in P.A. 93-176, there
was an ease of interpretation and administration, and a recognition that
when peremptory challenges are exercised as a group, there might be a
difference of opinion among the group as to which potential jurors should
be summarily excused. Mourison v. Hansen, supra, 128 Conn. 67. A rule
allowing each party to have its own challenges regardless of unity of interest
simplified jury selection, but also could lengthen it considerably when there
are multiple plaintiffs and defendants.
8 The same hearing also involved the defendant hospital’s motion for a
directed verdict, which the court denied on the ground that had testified
that the defendant hospital’s employees had breached a standard of care
because they had applied warm soaks and failed to call a physician, and
that those breaches were a substantial factor in the plaintiff’s injuries.
9 The question and answer of Poland relating to the proper standard of
care was as follows:
‘‘Q. Now, do you have an opinion as to whether or not the [defendant
physician] violated the proper standard of care in this instance?
‘‘A. He—he had less of a chance to make a difference, because he wasn’t
involved until eight in the morning, which is now four hours after the event.
And I said there was a six to eight hour window, which was probably
shortened by the heat. And it wasn’t clear that he saw it as an emergency
or was told that it was an emergency, even at eight o’clock, because things
got around to some sort of treatment around nine.’’
10 At the hearing on the motion for directed verdict, the court reviewed
Poland’s testimony and recapped that testimony as follows: ‘‘Doctor, based
on reasonable medical probability, would a consult with other physicians
have had a reasonably, medically, probably likelihood of being successful
outside of that four to six or the six to eight hour window?
‘‘The answer is, ‘No.’’’
The court noted that although the expert stated that a consult within the
time frame would have had no effect on the plaintiff’s injury, he did not
state that a consult within the time frame would have been successful in
treating the plaintiff.
11 An ischemic injury refers to an injury to an organ or tissue resulting
from insufficient blood supply to the part, which may be attributable to an
obstruction or constriction of the blood vessels.
12 Connecticut Code of Evidence § 7-2 provides: ‘‘A witness qualified as
an expert by knowledge, skill, experience, training, education or otherwise
may testify in the form of an opinion or otherwise concerning scientific,
technical or other specialized knowledge, if the testimony will assist the
trier of fact in understanding the evidence or in determining a fact in issue.’’
13 Connecticut Code of Evidence § 7-4 (a) provides: ‘‘An expert may testify
in the form of an opinion and give reasons therefor, provided sufficient
facts are shown as the foundation for the expert’s opinion.’’

Manifold v. Ragaglia

CHILD ABUSE REPORTING IMMUNITY

Manifold v. Ragaglia, No. 17150 (Conn. Dec.
28, 2004)

The Supreme Court of
Connecticut found that a physician who conducted an examination of a child
at the request of a state agency to determine if the child had been abused
was entitled to immunity from liability. The child had been taken to a hospital
emergency room after a social worker discovered extensive bruising on his
body. The physician in question concluded that the injuries could be the
result of child abuse and should be investigated further, without ordering
any blood tests to rule out medical explanations for the bruising. As a result,
the child was temporarily placed in the custody of a foster home. Later,
it was discovered that the child had a medical condition that caused the
bruising. The parents sued, alleging that the physician had been negligent
in failing to order blood tests, and alleging further that the physician
was not entitled to statutory immunity under the Connecticut child abuse
reporting statute because he was not an “initial reporter” of
child abuse when conducting an examination at the request of a state agency.
The court disagreed, finding that both public policy and the plain text of
the statute entitled the physician to immunity.