Maynard v. Sena

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MICHELE L. MAYNARD v. THOMAS SENA
(AC 36345)
Sheldon, Prescott and West, Js.
Argued February 5—officially released July 14, 2015

(Appeal from Superior Court, judicial district of New
London, Devine, J.)
Jon L. Schoenhorn, with whom were Drzislav Coric,
and, on the brief, Cody A. Layton, for the appellant
(plaintiff).
Laura Pascale Zaino, for the appellee (defendant).
Opinion

SHELDON, J. The plaintiff, Michele L. Maynard,
brought this medical malpractice action against the
defendant, Thomas Sena, a plastic surgeon, alleging
negligence on the part of the defendant in his postopera-
tive care and treatment of the plaintiff. The plaintiff
claimed, inter alia, that the defendant breached the
standard of care when, during a postoperative office
visit, he drained a seroma1 that had developed in the
plaintiff’s left breast without wearing surgical gloves.2
The plaintiff claimed that the defendant’s failure to wear
surgical gloves when he drained the seroma proxi-
mately caused her to contract an infection, which led
to a series of extensive and prolonged complications.
Following a trial, the jury returned a verdict in favor
of the defendant, and the court rendered judgment in
accordance with that verdict. On appeal, the plaintiff
claims that the trial court erred in admitting two types
of defense evidence against her, over her objection, and
that their prejudicial effect outweighed their probative
value, to wit: (1) the defendant’s testimony as to his
habit of wearing gloves when performing surgical pro-
cedures in his office; and (2) testimony by the defen-
dant’s expert witness as to the training of medical
professionals to use ‘‘universal precautions’’ when treat-
ing their patients. We affirm the judgment of the trial
court.
The following facts, which the jury reasonably could
have found, and procedural history, are relevant to this
appeal. Prior to the procedure that gave rise to this
action, the plaintiff underwent three breast augmen-
tation surgeries, in January, 1988, February, 1993 and
February, 2005. In July, 2005, the plaintiff was diagnosed
with cancer in her left breast, which she treated with
chemotherapy and radiation. In late 2006, she developed
capsular contracture in her left breast, which caused
the implant in that breast to become hard and painful.3
The plaintiff first met the defendant to obtain treat-
ment for her painful left breast on November 21, 2006.
After discussing her options with the defendant, the
plaintiff chose to have the implants removed from both
of her breasts and replaced with new ones. The defen-
dant performed that procedure at Lawrence & Memorial
Hospital in New London on January 11, 2007. On Janu-
ary 17, 2007, the plaintiff went to the defendant’s office
for postoperative care. At that time, the plaintiff had
developed a seroma in her left breast. Because seromas
sometimes resolve without treatment, the defendant
planned to see the plaintiff again in two to three weeks,
but he advised the plaintiff to call him if the amount
of fluid increased.
The plaintiff returned to the defendant’s office on
February 9, 2007, complaining of pressure and pain, in
addition to swelling, in her left breast. Although the
defendant observed the swelling, he did not see any
signs of infection. Nevertheless, in order to alleviate the
plaintiff’s symptoms of pressure and pain, the defendant
drained the fluid, which was uninfected, from the plain-
tiff’s left breast during her office visit that day. He did
so by removing the stitches from the January 11 surgery
and reopening the incision. When he finished draining
the seroma, he replaced the stitches and bandaged the
left breast.
The next morning, the plaintiff’s left breast was swol-
len and painful. She also was unable to lift her left arm
and had a fever. She was thus admitted to The William
W. Backus Hospital in Norwich, where she was adminis-
tered antibiotics and pain medication. After spending
several days in the hospital, the plaintiff was diagnosed
with an infection, which required the removal of the
new implant from her left breast, and a series of addi-
tional medical procedures.
In her amended complaint dated November 20, 2013,4
the plaintiff claimed, inter alia, that she contracted the
infection during her visit to the defendant’s office on
February 9, 2007. She attributed her infection to the
defendant’s negligence, inter alia, in inserting his
ungloved and unwashed finger into her left breast to
drain the seroma. The jury rejected this claim, and all
of the plaintiff’s other claims, by returning a verdict in
favor of the defendant. The court accepted the verdict
and rendered judgment thereon. This appeal followed.
Because both of the plaintiff’s claims on appeal con-
cern the court’s evidentiary rulings, we set forth, as a
threshold matter, the standard by which we review the
trial court’s determinations concerning the admissibil-
ity of evidence. Generally, ‘‘[t]he trial court’s ruling on
evidentiary matters will be overturned only upon a
showing of a clear abuse of the court’s discretion. . . .
We will make every reasonable presumption in favor
of upholding the trial court’s ruling, and only upset it
for a manifest abuse of discretion. . . . [Thus, our]
review of such rulings is limited to the questions of
whether the trial court correctly applied the law and
reasonably could have reached the conclusion that it
did.’’ (Internal quotation marks omitted.) Smith v.
Greenwich, 278 Conn. 428, 446–47, 899 A.2d 563 (2006).
As for claims that evidence should be excluded
because its prejudicial effect outweighs its probative
value, our standard of review, more particularly, is as
follows: ‘‘Relevant evidence is excluded . . . when its
probative value is outweighed by the danger of unfair
prejudice. . . . A determination regarding undue prej-
udice is a highly fact and context-specific inquiry. [T]he
determination of whether the prejudicial impact of evi-
dence outweighs its probative value is left to the sound
discretion of the trial court . . . and is subject to rever-
sal only [when] an abuse of discretion is manifest or
injustice appears to have been done. . . .
‘‘[T]here are [certain] situations [in which] the poten-
tial prejudicial effect of relevant evidence would sug-
gest its exclusion. These are: (1) where the facts offered
may unduly arouse the jur[ors’] emotions, hostility or
sympathy, (2) where the proof and answering evidence
it provides may create a side issue that will unduly
distract the jury from the main issues, (3) where the
evidence offered and the counterproof will consume
an undue amount of time, and (4) where the [opposing
party], having no reasonable ground to anticipate the
evidence, is unfairly surprised and unprepared to meet
it.’’ (Citation omitted; internal quotation marks omit-
ted.) Perez v. D & L Tractor Trailer School, 117 Conn.
App. 680, 696, 981 A.2d 497 (2009), cert. denied, 294
Conn. 923, 985 A.2d 1062 (2010). With these principles
in mind, we address the plaintiff’s claims in turn.
I
The plaintiff first claims that the trial court erred in
permitting the defendant to testify as to his habit of
wearing gloves when performing surgical procedures
in his office.5 She claims that the trial court improperly
determined that the probative value of that testimony
outweighed its prejudicial effect.6 We disagree.
The following additional facts are relevant to this
claim. During the defendant’s direct examination at
trial, he testified that he had performed surgical proce-
dures every day that he had worked in his office over
the course of his entire thirty year career, and that he
employed the same ‘‘sterile technique’’ when per-
forming every one of those procedures, regardless of
the nature of the procedure. Following that testimony,
the plaintiff objected to the defendant ‘‘testifying as to
what he standardly does because the question is what
did he do in this case. . . . Any evidence about what
he standardly does is more prejudicial than it is proba-
tive. . . . If he remembers what he did in this case,
let’s have him testify. If he doesn’t, then he shouldn’t
be able to testify to what he standardly does because
. . . while it may be relevant, it may have some rele-
vance, it may have some materiality, it’s clearly more
prejudicial than it is probative as to what he did in
this case.’’
The court overruled the plaintiff’s objection,
explaining: ‘‘[E]vidence of a habit of a person or the
retained practice of an organization is admissible to
prove that the conduct of the person or organization
on a particular occasion was in conformity of the habit
or routine practice.
‘‘The court clearly has the discretion to determine
whether or not this evidence should be permitted in
this case and ha[s] to weigh the probative value versus
any prejudice. The court feels that there would not be
any prejudice to the plaintiff in this particular case
because you certainly have the ability to cross-examine
the doctor here today and apparently there was a depo-
sition taken . . . of the doctor before where he didn’t
recall whether or not he had a glove on. So I think it’s
fair game in this particular case. There’s no prejudice—
excuse me. The probative value outweighs any prejudi-
cial effect.’’
The defendant then described for the jury the process
that he follows in performing surgical procedures in his
office. He testified as to the sterilization of the various
surgical instruments used and the use of a fenestrated
drape to create a sterile environment in the office. He
further testified that all of his sterile instruments would
be laid out on a sterile tray, brought into the room in
which he would perform the procedure, ‘‘and then I
would put on the gloves.’’ The defendant demonstrated
how he puts the gloves on his hands. The defendant
testified that, to drain a seroma, he generally would use
something other than a finger to manipulate the incision
to facilitate drainage, perhaps something smaller, like a
clamp, because a finger might be obtrusive and actually
impede the drainage. He testified that when he takes
his gloves off following a surgical procedure there is
usually a powder residue on his hands, which he then
washes off. The defendant testified that he takes this
sterile approach with all of the patients in his office,
and has done so for thirty years. He testified that he
could not conceive of having performed the procedure
on the plaintiff without gloves, because doing so would
put him at risk for contracting an infection ‘‘if she had
something like hepatitis or even AIDS . . . .’’ The
defendant testified that he had worn gloves for all of
the surgical procedures that he had performed through-
out his career, and that he would never have performed
the Feburary 9, 2007 procedure to drain the seroma in
the plaintiff’s left breast without wearing gloves.
On appeal, the plaintiff claims that the trial court
erred in permitting the defendant to testify that he has
worn gloves for every procedure that he has ever per-
formed in his office over his thirty year career. She
renews her claim that the probative value of such habit
evidence was outweighed by its prejudicial effect
because it allegedly changed the focus of the jury’s
inquiry from whether the defendant wore gloves when
he drained her seroma on February 9, 2007, to whether
he generally wears gloves when performing similar pro-
cedures in his office. The plaintiff argues that the
‘‘defendant could have done this procedure a hundred
times and did it right ninety-nine of those times. This
case focuses on the one time he did it wrong.’’ She
contends that, ‘‘[a]s a result of allowing the defendant
to testify to his habit, the actual issue to be decided of
whether or not the defendant wore a glove on February
9 [was] pushed into obscurity, and the inquiry became
whether or not the defendant would ever under any
circumstances in his career not wear gloves when con-
ducting an in-office procedure.’’ We disagree.
Section 4-6 of the Connecticut Code of Evidence pro-
vides: ‘‘Evidence of the habit of a person or the routine
practice of an organization is admissible to prove that
the conduct of the person or the organization on a
particular occasion was in conformity with the habit
or routine practice.’’ ‘‘[H]abit is a person’s regular prac-
tice of responding to a particular kind of situation with
a specific type of conduct. . . . [H]abit . . . refer[s]
to a course of conduct that is fixed, invariable, and
unthinking, and generally pertain[s] to a very specific
set of repetitive circumstances . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) Conn. Code
Evid. §4-6, commentary.
‘‘Testimony as to the habit or practice of doing a
certain thing in a certain way is evidence of what actu-
ally occurred under similar circumstances or condi-
tions. . . . Evidence of a regular practice permits an
inference that the practice was followed on a given
occasion.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) State v. Hubbard, 32 Conn.
App. 178, 185, 628 A.2d 626, cert. denied, 228 Conn. 902,
634 A.2d 296 (1993).
The plaintiff does not disagree that the defendant’s
testimony that he wore gloves every time he performed
a surgical procedure in his office during his thirty year
career was proper habit evidence, as contemplated by
our rules of evidence. The plaintiff argues, however,
that that testimony obscured the issue to be determined
by the jury because it shifted the focus of the inquiry
from whether the defendant wore gloves when he
drained the plaintiff’s seroma on February 9, 2007, to
whether he had the habit of wearing gloves when per-
forming surgical procedures in his office. The record
belies the plaintiff’s argument that the defendant’s testi-
mony caused any such confusion. The plaintiff made it
clear through her inquiry of the defendant, as well as
in her closing argument to the jury, that the defendant’s
testimony that he always wore gloves when performing
surgical procedures was not conclusive evidence that
he, in fact, did so when draining her seroma on February
9, 2007. The defendant’s testimony as to his regular
practice of wearing gloves when performing office pro-
cedures supported an inference that he wore gloves
when he drained the plaintiff’s seroma on February
9, 2007. The jury could have believed that it was the
defendant’s habit always to wear gloves when per-
forming surgical procedures, but that he failed to do
so on February 9, 2007. We are unpersuaded by the
plaintiff’s claim that the defendant’s habit testimony
confused the issues presented to the jury, or created
a collateral inquiry for the jury to consider. We thus
conclude that the trial court did not err in determining
that such testimony was not more prejudicial than pro-
bative.
II
The plaintiff also claims that the court erred in permit-
ting the defendant’s expert witness, Richard Restifo, a
plastic surgeon, to testify on redirect examination as
to the concept of ‘‘universal precautions.’’ Restifo
explained that all medical professionals are taught to
use ‘‘universal precautions’’ when dealing with their
patients to avoid potentially dangerous contact with
the patients’ bodily fluids. They are trained, in short,
to ‘‘treat every patient as though they have a potentially
serious communicable disease.’’7 The plaintiff argues
that the court erred in admitting Restifo’s testimony
regarding ‘‘universal precautions’’ because: (1) such tes-
timony was outside the scope of her cross-examination
of Restifo, and, thus, resulted in unfair surprise to her;
and (2) it shifted the focus of the jury’s inquiry from
whether the defendant wore gloves when treating the
plaintiff on February 9, 2007, to whether doctors are
trained to do so.8 We disagree.
Restifo testified that the defendant did not breach
the applicable standard of care in his care and treatment
of the plaintiff. Specifically, as it pertains to this claim,
Restifo testified, inter alia, that the defendant utilized
proper sterile technique in draining the plaintiff’s ser-
oma. On cross-examination, the plaintiff inquired about
the differences between performing a surgical proce-
dure in an operating room and performing it in an exami-
nation room in an office. Plaintiff’s counsel asked
Restifo, inter alia, if there is a requirement that a doctor
wash his or her hands and put on gloves prior to per-
forming a surgical procedure in an operating room.
Restifo answered in the affirmative. Plaintiff’s counsel
then suggested that no such requirement exists when
performing such a procedure in an office examination
room, but Restifo disagreed as follows: ‘‘Well, sure,
there’s a requirement. . . . [I]t’s not written or stated,
but I find it hard to imagine that any doctor or plastic
surgeon would cut a patient with a knife without having
gloves on. It just doesn’t ring true to me that that could
ever happen.’’9
On redirect examination, defense counsel asked
Restifo to define the term ‘‘universal precautions.’’ The
plaintiff objected to that inquiry on the ground that it
was beyond the scope of his cross-examination of
Restifo. The plaintiff further explained his objection as
follows: ‘‘It’s not what [the defendant] was expected to
do; it’s what he did and what he did is in his notes and
in his testimony. It’s not what he’s expected to do
. . . .’’ After the jury was excused the plaintiff contin-
ued: ‘‘[I]n this case what’s important is what actually
occurred, not what may have occurred or what should
have occurred, other than what’s expressed in opinions,
and there was no opinion about what he’s getting into
now.’’ The court overruled the plaintiff’s objection, con-
cluding that the defendant’s inquiry was not outside the
scope of cross-examination, and that the testimony was
relevant to whether, in Restifo’s opinion, based on all
of the information he had reviewed, his training, and
his experience, there had not been a breach of the
standard of care in the way the defendant performed
the procedure at his office on February 9, 2007.
We agree with the trial court that the defendant’s
inquiry regarding the concept of ‘‘universal precau-
tions’’ was within the scope of the plaintiff’s inquiries
on cross-examination, and, thus, that it could not have
caused her any unfair surprise. Not only did that con-
cept relate to the standard of care, as described by
Restifo in his expert testimony, but it explained the
basis for that standard of care. On cross-examination,
Restifo testified that wearing gloves when performing
surgery is so fundamental that he could not conceive
of a surgeon not doing so. On redirect examination,
defense counsel simply sought to explain the basis for
that opinion, which was that all doctors are taught to
treat every patient as if he has a communicable disease,
and to take the necessary protective measures to pre-
vent its transmission. Restifo’s testimony did not con-
fuse the issues or change the jury’s inquiry, as the
plaintiff argues, because he did not testify that the
defendant wore gloves when he drained the plaintiff’s
seroma on February 9, 2007. Indeed, Restifo acknowl-
edged, on cross-examination, that the surgical note of
the February 9, 2007 procedure did not contain a nota-
tion indicating that the defendant had worn gloves when
performing that procedure. Restifo’s testimony regard-
ing ‘‘universal precautions’’ was clearly offered to
explain what surgeons are taught and why they are
taught it, not necessarily what the defendant did on the
office visit in question when he drained the plaintiff’s
seroma. We disagree with the plaintiff that Restifo’s
testimony confused the jury or shifted its focus away
from what the defendant actually did on February 9,
2007. We thus conclude that the court did not abuse
its discretion in admitting the challenged testimony.
The judgment is affirmed.
In this opinion the other judges concurred.
1
A seroma is a collection of fluid.
2
Although the plaintiff alleged additional breaches of the standard of care
by the defendant and a lack of informed consent, the evidentiary claims
raised in this appeal pertain only to the allegation that the defendant did
not wear gloves when draining the plaintiff’s seroma.
3
Capsular contracture is a painful condition whereby scar tissue that
naturally forms around a breast implant thickens and constricts the implant.
Radiation increases the chance of developing a contracture.
4
This operative complaint was filed by the plaintiff to conform to the
evidence adduced at trial.
5
The plaintiff claims for the first time on appeal that habit evidence should
not be admissible in medical malpractice actions. Because she did not raise
this issue before the trial court, she is precluded from doing so now. See
Scandariato v. Borrelli, 153 Conn. App. 819, 832–33, 105 A.3d 247 (2014).
6
The plaintiff also argues that the defendant failed to establish an adequate
foundation for the admission of habit evidence. She argues that an adequate
foundation requires two components. First, she contends that the witness
must establish that he has no recollection of the actual event at issue. In
support of this argument, which appears in a single paragraph of her brief,
the plaintiff cites a single case from the Georgia Court of Appeals. She cites
no Connecticut authority on the issue, nor are we aware of any. In any
event, because the record is replete with evidence that the defendant did
not remember the specifics of the February 9, 2007 procedure, any such
requirement was fully satisfied. Second, the plaintiff argues that the witness
must ‘‘be required to demonstrate some form of frequency and specificity
regarding the alleged habit if evidence of such is to be admitted.’’ The
plaintiff failed to make this claim before the trial court, and, thus, we have
no occasion to review it on appeal. See Scandariato v. Borrelli, 153 Conn.
App. 819, 832–33, 105 A.3d 247 (2014). We note, however, that any such
requirement is fully satisfied on this record, which contains ample evidence
that the defendant used the same ‘‘sterile technique,’’ including wearing
gloves, every day for thirty years.
7
Restifo testified that: ‘‘Universal precautions means to assume that every
patient—and for that matter, every healthcare provider—has a potentially
communicable blood borne disease, or sputum borne or fluid borne
[disease].
‘‘So universal precautions [are] designed to prevent the doctor and the
patient from intermingling their blood, their sputum, their sweat; you know,
any of their body fluids. You should take whatever precautions are necessary
[such as] gloving, so that you don’t come in contact with the patient’s blood
and your blood doesn’t come in contact with her.’’
8
The plaintiff also claims that Restifo’s testimony on ‘‘universal precau-
tions’’ was more prejudicial than probative because he stated that the risk
of contracting communicable diseases was one reason that all doctors are
taught to always wear gloves when performing surgical procedures, and
that, when explaining that risk, he mentioned hepatitis and AIDS by way
of example, and the mention of those diseases ‘‘irreparably polluted’’ the
jury. Because the plaintiff did not raise this objection before the trial court,
she cannot do so here. See Scandariato v. Borrelli, 153 Conn. App. 819,
832–33, 105 A.3d 247 (2014).
9
The plaintiff did not ask that this statement be stricken from the record.