Records of Treating Physicians as Evidence of Causation in a Medical Malpractice Suit

December 22, 2013

Milliun v. New Milford Hospital, — A.3d —, 2013 WL 6670720 (Conn. 2013)

This very recent and important decision of the Connecticut Supreme Court looked into the following questions:

1. Can a patient use records compiled by her treating physicians as a causation evidence in a medical malpractice suit against her previous doctor?

2. Can a patient compel those physicians to testify as causation experts in the abovementioned suit?

These questions arose under the following set of facts:

A patient treated for a rare disabling neurological disorder, the “stiff man syndrome” or SMS for short, had an anoxic incident that severely impaired her cognitive functioning, speech, memory, and motor skills. She attributed that outcome to her doctors’ negligent monitoring of her condition and administration of a contraindicated medication. To establish the requisite causation, she offered into evidence medical records compiled by the Mayo Clinic doctors who started treating her after the anoxic incident. Those records verified the patient’s causation claim.

The Mayo Clinic’s doctors have refused to testify as experts, pursuant to the Clinic’s policy, but appeared at a deposition hearing. At that hearing, one of them testified that he relied on medical information indicating that while the patient was in the defendant’s care, “her rate of breathing was reduced to somewhere between one and four breaths per minute” and that upon his review of the relevant materials “he concluded that her cognitive deficits were caused by this anoxic event.” The doctors also used the differential etiology method—acceptable under Connecticut law—to rule out the patient’s SMS or some other neurodegenerative condition as a cause of her cognitive incapacitation, which left the anoxic incident as the only plausible cause of that incapacitation.

The Connecticut Supreme Court ruled that the records are admissible as evidence of causation because the defendant was able to cross-examine the Mayo Clinic’s doctors at the deposition hearing. This ruling made it unnecessary for the Court to decide whether these and similarly situated doctors can be subpoenaed to testify as experts on causation.