Gilman v. Shames
212 Conn. App. 147
Conn. App. Ct.2022Background:
- Decedent died October 1, 2015 after treatment by Dr. Brian Shames at the University of Connecticut Health Center (a state actor).
- On June 9, 2016 Gilman filed a § 4-147 notice of claim seeking permission to sue for his personal emotional distress and loss of consortium; the Claims Commissioner authorized suit (Feb. 23, 2017) up to $500,000 for alleged medical malpractice by state-employed providers.
- Gilman sued (June 26, 2017) in his individual capacity for bystander emotional distress against Shames and the hospital; the trial court dismissed for lack of jurisdiction, and this court affirmed because the bystander claim was derivative and required a wrongful death action by the estate.
- Gilman was appointed administrator of the decedent’s estate on May 23, 2018. He filed a new complaint May 19, 2020 asserting (as administrator) wrongful death and (in his individual capacity) bystander emotional distress; defendants moved to dismiss for lack of subject-matter jurisdiction and statute-of-limitations defects.
- The trial court denied the motion, finding the original § 4-147 notice sufficiently broad to waive sovereign immunity for the estate claim and that § 52-592 (accidental failure of suit) tolled the § 52-555 wrongful-death limitations; the state appealed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Claims Commissioner’s prior waiver of sovereign immunity encompassed Gilman’s wrongful-death claim brought in his representative capacity | Gilman: his § 4-147 notice, though inartful, sufficiently apprised the Commissioner of the wrongful-death claim and asked permission to sue the state | State: the notice only sought relief for Gilman personally; it did not identify a representative capacity or a wrongful-death claim, so no waiver for the estate claim | Held: No waiver for the estate claim — the notice was limited to individual claims and did not satisfy § 4-147’s requirement to identify representative capacity; court lacked subject-matter jurisdiction over the wrongful-death claim |
| Whether § 52-592 (accidental failure of suit) saved Gilman’s wrongful-death claim from the two-year limitations period (§ 52-555) | Gilman: § 52-592 is remedial and should be liberally applied; because he later became administrator, the savings statute saves the untimely wrongful-death action | State: § 52-592 does not apply because Gilman’s first action was solely an individual bystander claim and he was not the administrator then, so there is no identity/overlap required by the statute | Held: § 52-592 does not apply — unlike Isaac, Gilman did not maintain the requisite identity of interest or the ability to sue as administrator in the first action, so the wrongful-death claim is time-barred |
Key Cases Cited
- Arroyo v. University of Connecticut Health Center, 175 Conn. App. 493 (App. Ct. 2017) (notice to Claims Commissioner may be broadly construed when the same claim is presented at trial in slightly different form)
- Jacoby v. Brinkerhoff, 250 Conn. 86 (1999) (derivative claims must be joined with the predicate action; failure to do so is fatal)
- Isaac v. Mount Sinai Hospital, 210 Conn. 721 (1989) (§ 52-592 may save a second wrongful-death action when plaintiff’s status/interest and cause of action are essentially identical across suits)
- Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509 (1989) (distinguishes individual and representative causes of action; wrongful-death and individual claims are separate causes)
- Envirotest Systems Corp. v. Commissioner of Motor Vehicles, 293 Conn. 382 (2009) (statutes waiving sovereign immunity are strictly construed)
- Riccio v. Bristol Hospital, Inc., 341 Conn. 772 (2022) (describing § 52-592 as a remedial savings statute that must be applied within recognized limits)