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.’’