Wrongful Death Case Full Of Lessons

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Offer of judgment interest allowed; JTR rules offer to doctor alone was not ‘illusory’

by Thomas B. Scheffey
Connecticut Law Tribune

January 28, 2008

Vita Carlson, executrix v. Stamford Hospital, et al.: At different times in its 13-year life, the medical malpractice wrongful death case of truck driver Gary Carlson has been valued at less than $1 million to more than $22.5 million.

In a Jan. 17 ruling, Judge Trial Referee William B. Rush, held the defense’s rationale for refusing to take an offer of judgment for the $1 million policy limits back in 1998 was simply wrongheaded.

Furthermore, Rush ruled, Carlson’s estate was entitled to interest on the offer, which amounts to $13 million. Rush affirmed the $11 million awarded to the estate, but the additional $11.5 in loss of consortium damages to widow Vita Carlson was cut by $6.5 million. Rush’s blunt logic was expressed delicately: “Without diminishing the significant impact of the death of Mr. Carlson upon Mrs. Carlson, it is, under the evidence, not the same as the loss of the life of Mr. Carlson.”

Vita Carlson has had the privilege of enduring a wild roller coaster of court victories and reversals, which clarified Connecticut tort law, all without winning one actual cent so far.

The matter began when Gary Carlson consulted Dr. Robert Goldsmith of the now-defunct Stamford Medical Group about chest pains. Goldsmith gave Carlson an electrocardiogram, but didn’t put him on a treadmill for a stress test. He concluded that the problem was gastritis and gave Carlson an antacid.

In 1994, when Carlson was facing elective hip surgery, Waterbury internist O. Joseph Bizzozero asked if he’d had any heart problems. Carlson mentioned that his primary care physician, Goldsmith, had made a diagnosis of gastritis for his pains, which Bizzozero relied upon.

While recovering from the hip surgery weeks later, Carlson suffered a massive and fatal heart attack. An autopsy showed a 90 percent blockage of a vital artery, according to court records.

Defendants Bizzozero and Stamford Hospital settled before trial. Connecticut Medical Insurance Co., of Glastonbury, declined to accept a $1 million offer of judgment to settle with Goldsmith alone. On grounds that his medical group might still be liable even if Goldsmith settled, CMI rejected the offer. At a 2003 trial, Carlson’s estate and widow won $10 million, but Goldsmith appealed. Stamford Superior Court Judge Edward R. Karazin Jr. declined to allow Goldsmith to bring Bizzozero into the case, shortly before trial, as an apportionment defendant. As a settled party, Bizzozero hadn’t featured in Carlson’s case strategy, and Karazin held that bringing him in at the last minute would be unduly prejudicial to the plaintiffs.

On appeal, a unanimous Supreme Court found Karazin’s ruling was an abuse of discretion in 2006. The Connecticut Business and Industry Association filed an amicus brief supporting Goldsmith. It hailed the ruling as upholding the 1986 tort reform’s abolition of joint and several liability. That’s the historic tort principle that allowed plaintiffs to collect the entire judgment from any defendant, even one whose culpability was minimal.

The high court held that Karazin should have been guided by a 1995 statute that clarified the amount of notice a defendant needed to give a plaintiff before bringing in an apportionment defendant. If the apportionment defendant was sued by the plaintiff initially, as Bizzozero was, no additional notice was required, the court noted.

The new trial won by that appeal, and the right of apportionment was actually a major setback for the defense.

A jury in 2007 returned a $22.5 million verdict, apportioning 25 percent of the liability to Bizzozero. Of course, as a settled defendant, Bizzozero owes nothing more, and the actual liability was just under $17 million.

Rush’s ruling on Goldsmith’s post-verdict motions made a $6.5 million consortium reduction, reducing Goldsmith’s 75 percent share of the liability to $12 million.

The defense argued that it should not be liable for offer of judgment interest when the $1 million offer was to Goldsmith alone. It claimed this “illusory” offer would leave Stamford Medical Group, and possibly Goldsmith, open to additional liability, Rush noted.

He dispensed a succinct lesson in vicarious liability law. The only basis for Stamford Medical Group having liability would be “the doctrine of respondeat superior under which the Group would be vicariously liable for the acts of its admitted agent,” he wrote. “Under such circumstances the [Group’s] liability would be extinguished by operation of law.”

Rush awarded interest on the $1 million and $350 in attorneys’ fees.

At press time, neither plaintiff’s lawyer Joshua Koskoff nor Kevin Tepas had commented. Koskoff is a partner in Bridgeport’s Koskoff, Koskoff & Bieder. Tepas is a member of Stamford’s Ryan, Ryan, Johnson & Deluca.