154 Conn.App. 1
Conn. App. Ct.2014Background
- Plaintiff Lisa Cefaratti underwent open gastric bypass by Dr. Jonathan Aranow on Dec. 8, 2003; a surgical sponge was later discovered in her abdomen (CT, Aug. 6, 2009). Plaintiff sued Aug. 5, 2010.
- Counts alleged negligence against Aranow (direct), Shoreline Surgical Associates (his professional corporation), and vicarious liability against Middlesex Hospital. The action was dismissed on summary judgment; appeal followed.
- Key evidentiary facts: multiple post-op visits with Aranow (2004–2009), medical records and a letter from Aranow about treating morbid obesity, plaintiff’s testimony she repeatedly complained of abdominal pain, and hospital website materials identifying Aranow as founder/medical director of its weight-loss center.
- Statutory backdrop: Conn. Gen. Stat. § 52-584 imposes a two-year discovery rule and an absolute three-year statute of repose for medical malpractice claims. Plaintiff concedes repose ran but argues tolling doctrines apply.
- Procedural posture: trial court granted summary judgment to all defendants. Appellate court reversed in part—denying summary judgment as to Aranow and Shoreline only on continuing-treatment tolling—and affirmed in other respects, including hospital’s summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the continuing course of conduct doctrine tolls § 52-584 for Aranow | Aranow’s ongoing physician-patient relationship and repeated post-op visits created a continuing duty and continuing breaches (failure to order tests despite pain) | No continuing breach: plaintiff offered no expert proof that Aranow’s post-op care breached the standard of care; no evidence Aranow knew or had reason to suspect a retained sponge | No tolling under continuing course of conduct; summary judgment proper for this theory (plaintiff failed third Witt prong) |
| Whether the continuing treatment doctrine tolls § 52-584 for Aranow | Plaintiff was being treated for an identifiable condition (morbid obesity) requiring ongoing monitoring; she reasonably expected ongoing care, so repose was tolled until discovery of sponge | Aranow says ongoing visits were only routine post-op follow-ups and not treatment of an identifiable condition that would toll repose; retained sponge is not an "identifiable condition" | Tolling may apply under continuing treatment: genuine issues of material fact exist on first two Grey prongs; summary judgment erroneously granted as to this claim (reversed in part) |
| Whether Connecticut should recognize a judicial "foreign object" exception / equitable tolling to § 52-584 | Equitable tolling should allow a foreign-object exception (many states have adopted it) | Court defers to legislature; no Connecticut precedent creating such exception | Court declines to create a foreign-object exception; refusal affirmed (policy decision for legislature) |
| Whether Middlesex Hospital is vicariously liable (actual or apparent agency) for Aranow | Hospital held out Aranow as founder/medical director; website, seminars and plaintiff’s reliance create fact issues for actual or apparent agency | Hospital presented affidavits that Aranow was an independent practitioner with privileges (no employment, no compensation); Connecticut law limits agency/vicarious tort liability via apparent authority | Trial court correctly granted summary judgment: no genuine issue of actual agency; apparent-authority/vicarious tort liability cannot be used here under binding appellate precedent, so hospital summary judgment affirmed |
| Whether § 52-584 violates Connecticut Constitution (open courts) as applied | Statute would deny plaintiff redress absent tolling doctrines; facts warrant reconsideration of precedent | Prior Connecticut precedent permits reasonable time limits; statutes of repose are constitutional absent legislative change | Court rejects constitutional challenge and follows precedent (statute not unconstitutional on these facts) |
Key Cases Cited
- Witt v. St. Vincent’s Medical Center, 252 Conn. 363 (2000) (three-part test for tolling under continuing course of conduct doctrine)
- Martinelli v. Fusi, 290 Conn. 347 (2009) (distinguishes continuing treatment and continuing course doctrines; analytical framework)
- Grey v. Stamford Health Systems, 282 Conn. 745 (2007) (three-prong test for continuing treatment tolling)
- Blanchette v. Barrett, 229 Conn. 256 (1994) (discusses tolling under continuing course of conduct)
- L & V Contractors, LLC v. Heritage Warranty Ins. Risk Retention Group, Inc., 136 Conn. App. 662 (2012) (appellate panel held apparent authority cannot be used to impose vicarious tort liability in that context)
- Fireman’s Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., 127 Conn. 493 (1941) (discusses apparent authority; court applied test but did not foreclose tort application)
- Golden v. Johnson Memorial Hospital, Inc., 66 Conn. App. 518 (2001) (upheld § 52-584 against open-courts challenge)