330 Conn. 251
Conn.2018Background
- Patricia Sienkiewicz underwent surgery at Middlesex Hospital on Nov. 1, 2007; a chest X-ray on Nov. 5, 2007 was read by radiologist Robert Wolek, who reported congestive heart failure and a 1.8 cm spiculated left‑lung density suggestive of cancer. Wolek’s report states the findings were “called to the [hospital] floor.”
- A nurse’s chart note records that the X‑ray results were received and communicated to physician’s assistant Eileen Tobin at ~2:30 p.m. on Nov. 5, 2007; Tobin’s discharge summary referenced congestive heart failure but did not mention the spiculated mass.
- A CT on Apr. 6, 2012 showed a large neoplasm; decedent died of stage IV lung cancer on June 8, 2014. Plaintiffs (coexecutors) sued in July 2014 for wrongful death under Conn. Gen. Stat. § 52‑555 (two years from death; five‑year repose from act/omission).
- Defendants moved to dismiss for lack of subject‑matter jurisdiction, arguing the § 52‑555 five‑year repose had run and, because wrongful death is a statutory cause of action, the repose is a nonwaivable jurisdictional prerequisite. Tobin submitted an affidavit denying she was told about the mass.
- Plaintiffs argued tolling under the continuing course of conduct and continuing course of treatment doctrines, sought limited discovery or an evidentiary hearing to resolve disputed jurisdictional facts (who on the floor received Wolek’s call, what was conveyed, whether reports were forwarded), and invoked Conboy v. State for the need for a hearing when jurisdictional facts are disputed.
- Trial court dismissed, finding § 52‑555 repose jurisdictional, and that record did not support either tolling doctrine. Supreme Court affirmed jurisdictional character of § 52‑555 repose but reversed as to continuing course of conduct — remanding for limited discovery or an evidentiary hearing on disputed jurisdictional facts; continuing course of treatment remained inapplicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 52‑555 five‑year repose is a subject‑matter jurisdictional prerequisite | Repose is not jurisdictional; even if it is, allegations suffice or plaintiffs get discovery/hearing | Repose is jurisdictional; failure to comply deprives court of jurisdiction | Court: Repose is jurisdictional (legislative acquiescence); affirmed that character. |
| Whether continuing course of treatment tolls/redefines accrual | Treatment doctrine applies (or at least pleadable) to delay accrual | No ongoing treatment/monitoring occurred; doctrine inapplicable | Court: Doctrine inapplicable — decedent was never told about mass and received no ongoing treatment from defendants. |
| Whether continuing course of conduct tolls/redefines accrual | Doctrine applies because defendants (or their agents) may have known and had continuing duty to warn/monitor; disputed facts exist about who was told and what transpired on Nov. 5, 2007 | Doctrine inapplicable; defendants argue lack of knowledge and/or that Wolek reported findings to floor thereby discharging duty | Court: Doctrine is available; material jurisdictional facts are disputed — plaintiffs entitled to limited discovery or evidentiary hearing; remand. |
| Whether plaintiffs were entitled to pre‑dismissal discovery or evidentiary hearing on jurisdictional facts | Conboy requires hearing or discovery when jurisdictional facts are intertwined with merits; plaintiffs preserved request | Defendants rely on Kelly to deny pre‑dismissal discovery and assert plaintiffs waived hearing | Court: Plaintiffs preserved right; Conboy controls — when jurisdictional facts are intertwined, court must allow discovery or a hearing; remand for such proceedings on continuing course of conduct issue. |
Key Cases Cited
- Ecker v. West Hartford, 205 Conn. 219 (court treated wrongful death repose as jurisdictional) (establishing jurisdictional character of § 52‑555 repose)
- Blakely v. Danbury Hospital, 323 Conn. 741 (court declined to overturn Ecker due to legislative acquiescence) (reaffirming jurisdictional treatment)
- Conboy v. State, 292 Conn. 642 (when jurisdictional facts are intertwined with merits, court must hold hearing or allow discovery) (procedures for resolving factual disputes over jurisdiction)
- Grey v. Stamford Health System, Inc., 282 Conn. 745 (distinguishes treatment vs. conduct tolling; elements for continuous treatment doctrine)
- Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258 (discusses equitable tolling and limits when statute implicates jurisdiction) (addressed by court but distinguished)
- Kelly v. Albertsen, 114 Conn. App. 600 (App. Ct.) (addressed denial of pre‑dismissal discovery on jurisdiction; Conboy later limited Kelly)
- Witt v. St. Vincent's Medical Center, 252 Conn. 363 (elements for continuing course of conduct in medical malpractice context)
- Handler v. Remington Arms Co., 144 Conn. 316 (continuing course of conduct delays accrual)
- Bouchard v. State Employees Retirement Commission, 328 Conn. 345 (observes that continuing course delays accrual and permits recovery for cumulative harm)