ERIK M. PIN et al. v. DAVID L. KRAMER et al., SC 18572

Judicial District of Stamford

Medical Malpractice; Expert Testimony; Whether Curative Instruction Should have been Given Concerning Testimony by Defense Expert About his Concern over Malpractice Claims; Whether, if Instruction was Required, Failure to Give it was Harmful. The plaintiffs brought this medical malpractice action alleging that David L. Kramer, an orthopedic surgeon, was negligent in connection with his removal of a tumor from the named plaintiff.  At trial, the defendants' medical expert, orthopedic surgeon Todd Albert, testified that although the standard of care did not require that Kramer order any additional radiology tests, he would have ordered such tests had he been the treating physician due to his concern about malpractice claims.  Albert noted that there is a need to practice defensive medicine in order to protect against malpractice litigation and discussed how this trend is increasing the cost of medical care and forcing physicians to leave the profession.  The plaintiffs moved for a mistrial, or in the alternative, for a curative instruction on the ground that Albert had injected into the case improper issues that were extremely prejudicial to the plaintiffs.  The trial court denied the motion for a mistrial and declined to give the curative instruction.  The jury subsequently rendered a verdict in favor of the defendants.  On appeal, the plaintiffs claimed, among other things, that the trial court improperly denied their motion for a mistrial or for a curative instruction.  The Appellate Court (119 Conn. App. 33) agreed with the plaintiffs that Albert's testimony was highly prejudicial to them because it painted a picture sympathetic to physicians, portraying them as constantly forced to defend against malpractice claims and to bear the exorbitant cost of insurance.   The Appellate Court noted that although the improper statements by Albert were not pervasive, they introduced a highly controversial and legally improper issue into the case.  The Appellate Court concluded that the trial court's failure to issue a curative instruction in the face of Albert's inflammatory and prejudicial testimony was an abuse of discretion that likely influenced the jury's deliberations and deprived the plaintiffs of a fair trial.  As a result, the Appellate Court reversed the judgment and remanded the matter for a new trial.  In this appeal, the Supreme Court will decide whether the Appellate Court was correct in determining that the trial court improperly failed to give a curative instruction.  If it agrees that a curative instruction was required, it will consider whether the failure to give it was harmful.