192 Conn. 732 | Conn. | 1984
The plaintiff appeals from a judgment for the defendant, rendered after the trial court concluded that the plaintiff’s medical malpractice suit was
The facts, undisputed by either party, are as follows: The plaintiff was injured as the result of a slip and fall on December 20, 1972. She was taken to Park City Hospital in Bridgeport, where she was treated by the defendant, Allen Schlein, an orthopedic surgeon. He performed an operation on the plaintiff on December 20, 1972, and again on February 20, 1973.
Schlein informed the plaintiff in April, 1973, that she needed extensive physical therapy and further surgery to relieve her from the pain she was still experiencing. Thereafter, the plaintiff sought and received a second opinion from another physician, who performed surgery on April 16, 1973.
On December 16,1975, the plaintiff filed suit against the defendant, alleging that Schlein had been negligent in treating her and had caused her to endure further surgery as well as extreme pain and suffering.
On June 22, 1982, the defendant filed a motion for summary judgment similar to an earlier motion that had been denied in October, 1978. The court, upon review of the newly filed motion, concluded that there was no genuine issue of fact as to whether the action was brought more than two years after the discovery of the injury and granted the defendant’s motion.
I
The plaintiff claims that, although denial of a motion for summary judgment is an interlocutory order, it
“The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. See 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4478.” Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). We have declared that, although a judge should not lightly depart from a prior ruling on a motion before the same or a different judge, the prior ruling is not binding. “From the vantage point of an appellate court it would hardly be sensible to reverse a correct ruling by a second judge on the simplistic ground that it departed from the law of the case established by an earlier ruling. 18 Wright, Miller & Cooper, supra, § 4478; Parmelee Transportation Co. v. Keeshin, 292 F.2d 794, 797 (7th Cir.), cert. denied, 368 U.S. 944, 82 S. Ct. 376, 7 L. Ed. 2d 340 (1961). In an appeal to this court where views of the law expressed by a judge at one stage of the proceedings differ from those of another at a different stage, ‘the important question is not whether there was a difference but which view was right.’ Dawson v. Orange, 78 Conn. 96, 129, 61 A. 101 (1905).” Breen v. Phelps, supra, 100. See also Schwarzschild v. Martin, 191 Conn. 316, 325, 464 A.2d 774 (1983).
II
The plaintiff next claims that the trial court should have applied the statute of limitations for actions concerning implied contract
Malpractice is commonly defined
Ill
In her final claim of error, the plaintiff claims that a material fact was in dispute and that the defendant did not clearly establish the absence of all genuine issues of material fact. In order to address this claim adequately, we must first set out the evidence presented to the court by the defendant.
The defendant filed, along with his motion for summary judgment, his own affidavit and part of the plaintiff s deposition. In his affidavit, he averred that the last time he had treated the plaintiff was on April 5, 1973. In the deposition, the plaintiff stated that she knew that something was wrong with her leg when she consulted with a second physician in April.
General Statutes § 52-584 requires a plaintiff to file suit within two years of discovering the injury or be forever barred from suit. Burns v. Hartford Hospital, supra. The uncontradicted testimony of the plaintiff at
There is no error.
General Statutes § 52-576 provides in pertinent part: “(a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . . .”
General Statutes § 52-584 provides: “No action to recover damages for
General Statutes § 1-1 provides: “(a) In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.”
In the fourth paragraph of her complaint, the plaintiff alleges: “[T]he Defendant made repeated examinations of the plaintiff for both physical therapy, medical and post-surgical care purposes, but in doing so did not use the care and skill normally used by physicians engaged in medical practice in the Bridgeport, Connecticut area, nor did the Defendant perform the aforementioned surgical procedures with the care and skill required to insure proper healing of the Plaintiff’s injuries.”
In paragraphs six through nine, the plaintiff alleges that “[a]s a consequence of the Defendant’s negligence” she was forced to undergo corrective surgery and suffered pain and injury.
In her deposition, the plaintiff engaged in the following colloquy:
“Q. Well, then, why did you go to Dr. Truchly?
“A. Because of what Dr. Schlein said to me the last time he spoke to me. 'You’d have to have therapy for about a year. And, then, you’re going
“As a layman, I never heard of that term, arthritic operation.
“And then, I thought that was, ‘Oh, oh!’ That’s when I called Bridgeport Hospital. I went out to see Dr. Truchly the very same day, I believe.
“Q. What did he recommend?
“A. He recommended the open reduction operation.
“Q. What do you mean an open reduction operation?
“A. He rebroke my bones and reset them. Then, you work from — you cut on both sides of the ankle.
“Q. Why did he rebreak your bones and reset them?
“A. Because something was wrong.
“Q. What was that? What was wrong?
“A. My leg was not healed.”
Further along in the deposition the following colloquy took place concerning a conversation between the plaintiff and her attorney:
“Q. Did he agree that you should sue Dr. Schlein when you first discussed it prior to April 15, 1973?
“A. Before my operation in Bridgeport Hospital I think we did discuss it to the point where it could be a suit against Dr. Schlein.
“Q. He advised you it could be a suit?
“A. Yes. He advised me. That would be the word for it. We discussed the procedure along that route.
“Q. That he would sue Dr. Schlein?
“A. Yes.
“Q. That was prior to the April 15, 1973 operation?
“A. That’s right.
“Q. Did you ever discuss it with Dr. Truchly?
“A. The suit I did not discuss with Dr. Truchly. What had happened to me prior to seeing Dr. Truchly, of course, I discussed it with him. It happened to me.
“Q. Did you discuss the possibility of a claim against Dr. Schlein with Dr. Truchly?
“A. I don’t think we discussed it as lawyers would discuss it. I think we discussed it as far as patient and doctor, what happened.”
The plaintiff’s counsel filed his own affidavit — a practice we do not encourage and strongly disapprove; see Dorazio v. M. B. Foster Electric Co., 157 Conn. 226, 228-29, 253 A.2d 22 (1968); confirming the facts as revealed by the plaintiff’s deposition, and further averring that the suit had not been initiated earlier because the plaintiff was unable to find a physician who would state that Schlein’s treatment in this case had been negli