52 Conn. App. 699 | Conn. App. Ct. | 1999
Opinion
The plaintiffs, Frank Witt and Rebecca Witt, appeal from the judgment rendered in favor of the defendant David Lobdell after the trial court granted Lobdell’s motion for summary judgment. On appeal, the plaintiffs claim that the trial court improperly (1) failed to find that the statute of limitations, General Statutes § 52-584,
The following facts are relevant to the disposition of this appeal. In September, 1983, Frank Witt was sent by his family physician to a surgeon, Vincent Donnelly, to perform a biopsy on an enlarged cervical lymph node. Donnelly excised the node on September 26, 1983, and sent the node to Lobdell, a pathologist. Lobdell examined the tissue the following day and wrote a report in which he stated that his diagnosis was “atypical lymphoid hyperplasia” of the cervical lymph node. Frank Witt relied on this diagnosis and did not pursue any treatment for his persistent neck swelling.
Eleven years later, in November, 1994, Frank Witt discovered that he was suffering from non-Hodgkin’s lymphoma. On October 19,1994, Witt’s treating oncologist, Barry Meisenberg, requested from Lobdell the original slides of the excised lymph node. Lobdell complied and sent the slides as well as a copy of the medical report. At the bottom of the report, Lobdell wrote a note to Meisenberg that stated: “I’d be interested in a follow up on this patient!! I think at the time we were concerned that Mr. Witt might be evolving a small lymphocytic lymphoma/CCL.”
On September 25, 1996, Lobdell filed a motion for summary judgment on counts two and four of the complaint, alleging that those claims were barred by the applicable statute of limitations.
“The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material
The plaintiffs claim on appeal that the trial court improperly failed to find that the statute of limitations, § 52-584, was tolled by Lobdell’s continuous duty to warn Frank Witt of a suspected, evolving lymphoma and a continuous course of conduct premised on Lobdell’s failure to report a corrected diagnosis and an ongoing physician-patient relationship. The plaintiffs further claim that the trial court improperly failed to find genuine issues of material fact and granted Lobdell’s motion for summary judgment. We disagree.
The continuing course of conduct doctrine is well established in the jurisprudence of this state. “The continuous course of conduct doctrine requires that three requirements be met: (1) an ongoing physician-patient relationship; (2) negligence by the defendant; and (3) some form of conduct that continued beyond the initial treatment. [Id., 278.] These requirements are ‘conspicuously fact-bound.’ Id., 276. ‘The determination of whether the physician-patient relationship has terminated depends upon several factors. These factors include the subjective views of the parties as to whether their relationship had terminated; the length of their relationship; the frequency of their interactions; the nature of the physician’s practice; whether the physician had prescribed a course of treatment for or was monitoring the condition of the patient; whether the patient was relying upon the opinion and advice of the physician with regard to a particular injury, illness or medical condition; and whether the patient had begun to consult with another physician concerning the same injury, illness or medical condition.’ ... Id., 278.”
Here, Lobdell maintains that there is no basis to toll the statute of limitations because there was no longstanding relationship between the parties. The plaintiffs’ complaint alleges that Frank Witt’s injuries arose out of Lobdell’s alleged misdiagnosis and reporting of a pathology specimen on September 26, 1983. This one time occurrence was the sole medical service Lobdell provided to Frank Witt. Indeed, there is no claim that Lobdell had ever met Frank Witt, provided medical treatment or even had any contact with him subsequent to the examination of the lymph node specimen and his report to Witt’s physician. Furthermore, Lobdell filed a sworn affidavit with the trial court that stated that the September 26,1983 pathology report was the only medical service he ever provided to Frank Witt. The plaintiffs do not controvert this material fact, nor do they claim that they had any subjective view that there was any ongoing relationship between Frank Witt and Lobdell. Because of these facts, we find that there was no continuous course of conduct based on an ongoing physician-patient relationship that could toll the statute of limitations.
Furthermore, we agree with Lobdell that the plaintiffs’ reliance on Connell v. Colwell, 214 Conn. 242, 571 A.2d 116 (1990), is misplaced. In Connell, our Supreme Court applied the continuing course of conduct doctrine, stating: “ ‘To support a finding of a “continuing course of conduct” that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong.’ Fichera v.
In addition, while the plaintiffs correctly state that the trial court improperly held that “there is no continuing duty to warn under Connecticut law,” there was, nonetheless, no duty to warn or correct an alleged misdiagnosis in the case. For support of their claim, the plaintiffs cite Cross v. Huttenlocher, 185 Conn. 390, 440 A.2d 952 (1981). Their reliance is misplaced, however, because while our Supreme Court did recognize that “the negligent failure to warn is a continuing course of conduct”; id., 400, citing Prokolkin v. General Motors Corp., 170 Conn. 289, 298, 365 A.2d 1180 (1976); Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957); in Cross, there was a long-standing relationship between the plaintiff and the defendant physician.
The only other material fact relevant to this discussion is the date the plaintiffs filed this lawsuit. It is clear that the plaintiffs did not file this lawsuit until March 27,1995, more than eleven years after the alleged negligent act, and, therefore, this action was filed well past the expiration of the statute of limitations pursuant to § 52-584. Since there was only a single medical service provided by Lobdell to Frank Witt in September, 1983, and there was no breach of a duty that remained in existence subsequent to September, 1983, the continuing course of conduct doctrine cannot be applied to toll the statute. Furthermore, because there exists no issue of material fact as to the date on which the complaint was filed and whether the relationship between Frank Witt and Lobdell was a physician-patient relationship and whether such relationship was ongoing, the trial court properly granted summary judgment.
On the basis of the foregoing, we conclude that the trial court properly granted Lobdell’s motion for summary judgment because there was no genuine issue of material fact for a jury to consider and the claim was filed well beyond the applicable statute of limitations.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first
St. Vincent’s Medical Center has not moved for summary judgment.
The trial court later filed a written memorandum of decision on December 1,1997. Thereafter, the plaintiffs filed a motion to reargue, which was denied.
The claim for loss of parental consortium by the plaintiffs’ son, Frank Joseph Witt, on which summary judgment was granted, has not been raised as an issue in this appeal.
This claim also fails because, while the plaintiffs brief the failure t o warn issue, they fail to mention any claimed failure to warn in their complaint. The plaintiffs also cite Handler v. Remington Arms Co., supra, 144 Conn. 316, to support their argument that a physician has a continuous duty to warn his patient of a dangerous condition of which he is aware. Handler is readily distinguishable from this case because Handler was not a medical malpractice case but, rather, a products liability action.