82 Conn. App. 396 | Conn. App. Ct. | 2004
Opinion
The principal issue in this medical malpractice case is whether the “continuous treatment” or “continuing course of conduct” doctrine tolls the statute of limitations in General Statutes § 52-584. The plaintiff, Antonina Rosato, brought this action ultimately in two counts against the defendant, Teresita Mascardo, alleging that she suffered damages as a result of the defendant’s unauthorized insertion of silicone breast implants during a surgical procedure. The plaintiff appeals from the judgment rendered after the grant
The facts pertinent to this appeal follow. On February 13,1989, the defendant performed surgery on the plaintiff. The surgery included bilateral mastopexy
The action was commenced on November 19, 1992. The plaintiff filed an amended complaint on June 1, 1993, adding to the first count of medical malpractice a second count alleging breach of contract. Both counts addressed the surgical procedures performed by the defendant on February 13, 1989. On June 14, 2002, the defendant filed a motion for summary judgment as to both counts, arguing that the claims were barred by the two year statute of limitations contained in § 52-584.
I
The plaintiff first claims that the court improperly granted the defendant’s motion for summary judgment on the first count. The plaintiff argues that the court improperly concluded that neither the continuing course of conduct doctrine nor the continuing treatment doctrine tolled the statute of limitations to save the medical malpractice count. The issue that we address here is whether either doctrine applies to toll the statutory period after the plaintiff has discovered her injury.
As a preliminary matter, we note that the issue is before us pursuant to the granting of a motion for summary judgment. “[T]he scope of our review of the granting of a motion for summary judgment is plenary. . . . In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . .
“Practice Book § 17-49 . . . requires that judgment shall be rendered forthwith if the pleadings, affidavits
For purposes of summary judgment and this appeal, the court views the evidence in the light most favorable to the plaintiff. In her affidavit filed in opposition to the defendant’s motion for summary judgment, the plaintiff averred the following. At her first postoperative meeting when she was told of the insertion of the silicone breast implants, she was furious and demanded their immediate removal. The defendant told the plaintiff that she would remove the breast implants free of charge after the plaintiff healed and when the defendant’s new surgical center was completed. At her second postoperative visit, the plaintiff again informed the defendant that she wanted the implants removed immediately. The
In August, 1992, the defendant informed the plaintiff that the operating room at the defendant’s surgical center was complete. The defendant agreed to schedule the surgery. At the scheduling meeting, the defendant told the plaintiff that the cost of the silicone implant removal surgery was $4000. The plaintiff refused to pay, and the defendant refused to remove the implants for free. The plaintiff never returned to the defendant’s care after August, 1992.
The applicable statute of limitations, § 52-584, imposes two specific time requirements on plaintiffs. The first requirement, referred to as the discovery portion, and the only portion applicable in this case, “requires a plaintiff to bring an action within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered .... The second provides that
The parties agree that the date of discovery was February 20, 1989, the date the plaintiff learned that the defendant had surgically inserted silicone breast implants. Therefore, under the discovery portion of § 52-584, the plaintiff was required to bring her action on or before February 20, 1991.
The plaintiff bases her claim of tolling on the parties’ relationship through August, 1992, which allegedly implicates either the continuous treatment doctrine or the continuing course of conduct doctrine. Under the continuous treatment doctrine, the statute does not begin to run until the course of treatment giving rise to the injuries is terminated. See Blanchette v. Barrett, 229 Conn. 256, 274, 640 A.2d 74 (1994). Under the continuing course of conduct doctrine, the statute of limitations is tolled when there is evidence of a breach of duty that remained in existence after the initial or original wrongful conduct. Id., 275.
The policies underlying both doctrines are similar. “The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied. . . . For example, the doctrine is generally applicable under circumstances where [i]t may be impossible to pinpoint the exact date of a particular negligent act
In Blanchette, our Supreme Court applied the continuing course of conduct doctrine to toll the three year repose section of § 52-584 because of evidence that the defendant physician had failed to satisfy his duty of monitoring the plaintiffs questionable breast condition. Id., 265. The court considered that to be later wrongful conduct that related to the defendant’s diagnosis of the plaintiff.
Similar to Blanchette, other medical malpractice cases in which the course of conduct doctrine has been applied involved the conduct of the defendant prior to the discovery of injury by the plaintiff. Those cases all concerned injuries discovered beyond the three year repose section of § 52-584. See, e.g., Witt v. St. Vincent’s Medical Center, 252 Conn. 363, 372, 746 A.2d 753 (2000) (genuine issue of material fact as to whether defendant had continuing duty to plaintiff following defendant’s alleged initial misdiagnosis); Cross v. Huttenlocher, 185 Conn. 390, 401-402, 440 A.2d 952 (1981) (statute of limitations tolled because of negligent failure of physician to warn patient of harmful side effects of drug that physician prescribed and patient continued to ingest over period of time); but see Connell v. Colwell, 214
In Connell v. Colwell, supra, 214 Conn. 255, our Supreme Court refused to apply the tolling doctrine because the court held that the defendant’s duty ends when the cause of action accrues. The plaintiff here claims that under the reasoning of Connell, the statute of limitations should have been tolled because to provide the most efficacious medical care, a physician should remain on the case from onset to cure. The conduct that the plaintiff claims implicates either the continuing course of conduct or continuous treatment doctrine occurred after the plaintiff discovered the injury or actionable harm.
When applying § 52-584 to determine whether an action was timely commenced, this court has held that “an injury occurs when a party suffers some form of actionable harm. . . . Actionable harm occurs when the plaintiff discovers . . . that he or she has been injured and that the defendant’s conduct caused such
The Rivera court’s reasoning is persuasive. Accordingly, we find that as a matter of law, both tolling doctrines apply only to the repose portion of the statute and not to the discovery portion. The discovery portion addresses the plaintiffs knowledge of the injury and not the defendant’s act or omission. Once the plaintiff has discovered her injury, the statute begins to run. Moreover, after the discovery of actionable harm, the policy behind either doctrine, that is, the preservation of a continuing physician-patient relationship to remedy the created harm, is no longer served. Id.
Furthermore, the accrual of the cause of action is a singular moment in time. Allowing that point in time to be pushed forward as long as it is claimed that the negligent conduct continued would eviscerate the policies underlying the statute of limitations. The plaintiff would be allowed to acquiesce in the defendant’s conduct as long as it was convenient to the plaintiff. That would undermine the promotion of “finality in the litigation process”; (internal quotation marks omitted) Bill-erback v. Cerminara, 72 Conn. App. 302, 309, 805 A.2d
In her argument that the tolling doctrines apply to her action, the plaintiff relies on DeLeo v. Nusbaum, 263 Conn. 588, 821 A.2d 744 (2003). DeLeo was a legal malpractice action that was based on a claim that the defendant attorneys negligently had entered into a stipulated agreement in which the plaintiff was allowed only supervised visits with his children. Id., 589-90. The trial court ruled that the statute of limitations in § 52-577 could not be tolled because there was no continuing attorney-client relationship within three years of the commencement of the action. Id., 590-91. The Supreme Court determined that the plaintiffs act of sending a letter to his wife did not unequivocally indicate that he had terminated the attorney-client relationship. Id., 600. The Supreme Court reversed the judgment and remanded the case to the trial court to allow the plaintiff to offer evidence that he had had no knowledge of the defendant’s negligence.
The court in DeLeo held that “a plaintiff may invoke the [continuous representation] doctrine, and thus toll the statute of limitations, when the plaintiff can show: (1) that the defendant continued to represent him with regard to the same underlying matter; and (2) either that the plaintiff did not know of the alleged malpractice or that the attorney could still mitigate the harm allegedly caused by that malpractice during the continued representation period.” (Emphasis in original.) Id., 597. The plaintiff here relies on that language to argue that even though she knew of the harm, the physician’s offer to mitigate damages by performing the corrective surgery free of charge satisfied prong two of the DeLeo
DeLeo is distinguishable from the present case. First, the statute at issue in DeLeo, General Statutes § 52-577,
Moreover, § 52-577 differs from § 52-584 in a significant way. Section 52-577 is solely a repose statute and contains no discovery provision. The repose portion of § 52-584 is not at issue in this case. Accordingly, the analysis and application of tolling doctrines in DeLeo as to § 52-577 do not guide us in our analysis and application of tolling doctrines as to § 52-584.
Further, the holding of DeLeo is quite limited. In a footnote, the court explicitly limited its holding to “cases in which an attorney is alleged to have committed malpractice during the course of litigation.” DeLeo v. Nusbaum, supra, 263 Conn. 597 n.4. Because the breadth of the holding was limited even within the context of legal malpractice, this court declines to read that holding expansively and to apply it to cases involving medical malpractice.
On the basis of our review of the law addressing the application of tolling doctrines to § 52-584, we agree with the trial court’s decision that because the plaintiff brought her malpractice claim more than two years after she discovered her actionable harm, her claim is
II
The plaintiff next claims that the court improperly directed a verdict for the defendant on count two of the complaint prior to the conclusion of the plaintiffs case. Specifically, the plaintiff claims that the court improperly determined that she was required to present expert testimony on causation. We conclude that the court improperly directed the verdict before the conclusion of the plaintiffs case-in-chief.
“The standards for reviewing a challenge to a directed verdict are well known. Generally, litigants have a constitutional right to have factual issues resolved by the jury. . . . Directed verdicts [therefore] are historically not favored and can be upheld on appeal only when the jury could not have reasonably and legally reached any other conclusion. . . . We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff. (Internal quotation marks omitted.) Young v. Rutkin, 79 Conn. App. 355, 363, 830 A.2d 340, cert. denied, 266 Conn. 920, 835 A.2d 60 (2003).
Practice Book § 16-37 permits a party to seek a directed verdict “at any time after the close of the plaintiffs case in chief . . . .” That section indicates that directed verdicts may be considered at the close of the plaintiffs case-in-chief. There is one case, however, in which the court found noncompliance with the rule of practice to be acceptable. In Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003), our Supreme Court
Prior to the close of the plaintiffs case-in-chief, the court, without a motion from the defendant, directed the verdict for the defendant, stating: “I think that it is my obligation here that there’s no possibility that the plaintiff can make [her] case in view of the fact that there is no medical evidence to explain the consequential nature of the damages here, the subsequent surgery, so I’m going to direct the verdict.” In directing the verdict, the court did not address the issue of compensatory damages. The court continued, stating: “So, I have determined that the plaintiff will be unable to make her case based on the testimony elicited from the defendant, Dr. Mascardo, who would probably be the only doctor who would testify in this case.” (Emphasis added.)
The defendant asserts that the court properly directed the verdict because the plaintiff had not met her legally required burden with respect to proof of damages. In Celentano v. Grudberg, 76 Conn. App. 119, 125-26, 818 A.2d 841, cert. denied, 264 Conn. 904, 823 A.2d 1220 (2003), in the context of legal malpractice, this court determined that expert testimony is required to prove damages regar dless of whether the action proceeds in contract or in tort. We find that reasoning applicable to medical malpractice claims proceeding on a contract theory as well. In light of our decision as to the procedural impropriety of the verdict on that count, we do not determine the need for expert testimony in the plaintiffs claims for damages.
The plaintiff has a right to have factual issues resolved by the jury. The plaintiff had not been given the opportu
HI
As an alternate ground for affirmance, the defendant claims that summary judgment should have been granted as to the second count of the plaintiffs amended complaint. Specifically, the defendant claims that the plaintiffs contract claim should have been dismissed because (1) it was not a claim for the breach of a promise to achieve a specific result and (2) it sought tort damages as opposed to contract damages. Because we conclude that issues of fact exist, we disagree.
The court’s decision on a motion for summary judgment is a legal determination. Therefore, our review on appeal is plenary. Faigel v. Fairfield University, 75 Conn. App. 37, 40, 815 A.2d 140 (2003).
The defendant argues that Connecticut law does not recognize a medical malpractice claim that proceeds on a contract theory unless there has been a claim of a breach of a promise to achieve a particular result and, because that was not claimed here, summary judgment should have been granted on count two. We are not persuaded.
It is possible for a negligence claim and a contract claim to arise out of the same facts, and a breach of contract claim may be heard in the same case claiming medical malpractice. See Janusauskas v. Fichman, 68 Conn. App. 672, 676-78, 793 A.2d 1109 (2002), rev’d in part on other grounds, 264 Conn. 796, 826 A.2d 1066 (2003). “Whether the plaintiffs cause of action is one for malpractice depends upon the definition of that word and the allegations of the complaint. . . . Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of
In count two of her complaint, the plaintiff claimed that she had not received the medical procedure for which she had bargained. She alleged that she had bargained for a breast lift and instead received a breast lift and silicone implants. A careful reading of the complaint shows that count two did not allege negligence or malpractice as part of the cause of action. Rather, count two specified alleged acts of the defendant that would constitute a deviation from the alleged agreement between the parties. Furthermore, the court considered the language of the complaint and found that “[t]here is no dispute that the second count does invoke contract language.” Accordingly, we conclude that count two was a contract claim rather than a medical malpractice claim.
The defendant argues that courts in Connecticut have generally disallowed contract claims in medical malpractice actions when they do not contain a claim for breach of a promise to achieve a particular result. We read the cases relied on by the defendant for that proposition differently. In those cases, the courts restricted the contract claims not because the plaintiffs did not plead a failure to achieve a particular result, but because their claims sounded in malpractice and failed to disclose any breach of a contractual duty owed to them by the defendants. See Barnes v. Schlein, supra, 192
The judgment is reversed only as to the directed verdict on the second count and the case is remanded for further proceedings on that count in accordance with law.
In this opinion the other judges concurred.
Mastopexy is defined as follows: Plastic surgery to affix sagging breasts in a more elevated and normal position, often with some improvement in shape. Stedman’s Medical Dictionary (25th Ed. 1990) p. 926.
The plaintiff testified in her deposition that she was completely satisfied with the nasal surgery, and that claim in the complaint was not pursued. The plaintiff makes no claim in this appeal regarding the abdominal surgery.
General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person . . . caused by negligence ... or by malpractice of a physician . . . shall be brought but within two years from the date when the injury is first sustained or discovered . . . and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .”
The plaintiff malees no claim of fraud or equitable estoppel.
General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”