MICHELLE DILIETO et al. v.

COUNTY OBSTETRICS AND GYNECOLOGY GROUP, P.C., et al., SC 17744

Judicial District of Waterbury

     Medical Malpractice; Whether Jury's Finding of Negligence was Supported by the Evidence; Whether the Evidence was Insufficient to Submit Certain  Negligence Claims to the Jury; Whether Certain Negligence Claims were Time Barred (§ 52-584); Whether Offers of Judgment Filed by Original Plaintiff were Invalid. In February, 1995, pathologists from defendant Yale University School of Medicine (Yale) diagnosed a specimen of Michelle DiLieto's uterine tissue as being consistent with a rare form of cancer.  Peter E. Schwartz, a professor of obstetrics and gynecology at Yale, advised DiLieto's gynecologist, Scott Casper, of the pathologists' finding and recommended a hysterectomy and a pelvic lymph node dissection because of the possible spread of the malignancy to the lymph nodes.  In May, 1995, Casper performed a hysterectomy on DiLieto, while Schwartz and Babak Edraki, a surgeon, performed the lymph node dissection.  After learning in February, 1996, that she had been misdiagnosed with cancer, DiLieto brought this medical malpractice action against the defendants.  DiLieto subsequently filed a bankruptcy petition and the bankruptcy trustee was substituted as the plaintiff.  The jury returned a verdict in favor of the trustee and awarded $5,200,000 in damages.  Thereafter, the trustee, pursuant to General Statutes § 52-192a, filed a motion requesting offer of judgment interest.  Noting that the offers of judgment were filed by DiLieto after she had filed for bankruptcy, the defendants objected, claiming that DiLieto's offers of judgment were invalid since only the bankruptcy trustee had exclusive authority to control and settle the action.  The court overruled the defendants' objection and awarded the trustee offer of judgment interest, ruling that the substitution of the trustee as party plaintiff related back to the institution of the action; consequently all pleadings, including the offers of judgment, were deemed to have been filed by the trustee.  On appeal, the defendants claim, among other things, that the evidence does not support the jury's findings that (a) Casper acted negligently in performing the hysterectomy when considering that pathology reports indicated that DiLieto's tissue sample was consistent with cancer, and (b) DiLieto sustained nerve damage from the lymph node surgery.  The defendants also claim that the trial court improperly submitted the following specifications of negligence to the jury for which there was insufficient evidentiary support: (1) Casper failed to ensure Schwartz would participate in DiLieto's surgery, and (2) Schwartz failed personally to supervise Edraki during DiLieto's surgery.  The defendants further claim that because these specifications of negligence, which appeared for the first time in the third amended complaint filed on July 2, 1998, alleged an entirely new factual pattern and theory of negligence, they did not relate back to the original complaint and were thus time barred by General Statutes § 52-584.  Finally, the defendants challenge the trial court's decision that the offers of judgment filed by DiLieto were valid.