Clara London v. Yale New Haven Hospital et al. (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 119)

FACTS AND PROCEDURAL HISTORY

This action arises from a four-count complaint that the plaintiff, Clara London, commenced by service of process on the defendants, Yale New Haven Hospital, Yale University School of Medicine, Yale University, and Dr. Dieter Lindskog, on April 29, 2009.   Pursuant to General Statutes § 52-190(a), the plaintiff also submitted a certificate of reasonable inquiry and a medical opinion from a healthcare provider.   On October 9, 2009, the plaintiff filed an amended complaint.   The plaintiff alleges the following facts.   On October 12, 2006, the plaintiff underwent hip replacement surgery for her right hip.   A second surgery was performed on October 13, 2006 after she was informed that a misplaced piece of the replacement hip needed to be removed.   Shortly after the second surgery, in October 2006, the plaintiff contacted her attorney to inquire about pursuing litigation.   From the date of the surgery until June 2007, the plaintiff received post-operative care and rehabilitation from the defendants.   In October 2006 and again in November 2006, the plaintiff spoke with staff at the rehabilitation facility about the fact that her right leg was longer than her left leg.   In November 2006, the plaintiff received custom-made prosthetic shoes to correct the problem.   During follow-up visits with the defendants from 2006 to 2009, the plaintiff complained of additional problems such as lower back pain, depression, and swelling in her right hip.   In February 2009, after review from a medical professional, the plaintiff discovered that the cause of her injuries were the result of the actions of the defendants during the October 12, 2006 surgery.

On May 18, 2010, the defendants filed a motion for summary judgment on the ground that the plaintiff's claims are barred by the statute of limitations contained in General Statutes § 52-584.   In support of their motion, the defendants submitted a memorandum of law and attached the following evidence:  (1) the marshal's return of service, (2) selected pages of certified transcripts of the plaintiff's depositions on January 19, 2010 and April 1, 2010, and (3) a letter from the plaintiff's attorney and authorization for the release of medical information signed by the plaintiff.

The plaintiff filed an objection and supporting memorandum of law on July 8, 2010.   In support of the objection, the plaintiff attached:  (1) an affidavit by the plaintiff, (2) selected pages of the transcript of the plaintiff's deposition, and (3) the medical opinion required by § 52-190(a).   On July 16, 2010, the defendants filed a reply to the objection to the motion and attached a writ of summons and complaint filed by the plaintiff with a return date of March 3, 2009, Docket No. CV 09 5027053, which included a copy of a petition for an automatic 90-day extension of the statute of limitations, dated September 25, 2008, and granted on September 25, 2008, and a good faith certificate.   The defendant also attached the withdrawal of Docket No. CV 09 5027053.   The present matter was argued at short calendar on September 7, 2010.

DISCUSSION

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.”  Practice Book § 17-45.

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).  “To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ․ which contradict those stated in the movant's affidavits and documents ․ The opposing party to a motion for 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 ․ The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.”   (Internal quotation marks omitted.)  DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 599, 2 A.3d 963 (2010).

“Summary judgment may be granted where the claim is barred by the statute of limitations.”  Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).   Summary judgment is appropriate on statute of limitations grounds when the “material facts concerning the statute of limitations [are] not in dispute ․” Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).

The defendants argue that the plaintiff is barred by the statute of limitations contained in § 52-584 because she did not initiate the action within two years of discovering her injuries in October 2006.   The defendants further maintain that the continuous treatment and continuing course of conduct doctrines do not apply to toll the statute of limitations because the doctrines do not apply after the plaintiff discovers the harm and that here, the plaintiff was aware of her injuries in 2006.   The plaintiff argues that she did not have an actionable harm until she learned of the cause of her injuries in February 2009.   Thus, the continuous treatment and continuing course of conduct doctrines apply and the statute of limitations was tolled, allowing her to bring a claim under the statute of repose section of § 52-584.   The defendants respond that the plaintiff's “claims of ignorance prior to ․ February 2009 are simply untrue” and that she had discovered that her right leg was longer than her left in October 2006.   Therefore, “[s]ince she discovered at least some form of actionable harm at that time, the statute of limitations began to run in October 2006 and expired in October 2008.”

Section 52-584 provides in relevant part:  “No action to recover damages for injury to the person ․ caused by ․ medical malpractice of a physician, surgeon, ․ hospital or sanatorium, shall be brought but 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, and except that no such action may be brought more than three years from the date of the act or omission complained of ․” Our Supreme Court has emphasized that “the relevant date of the act or omission complained of, as that phrase is used in § 52-584, is the date when the negligent conduct of the defendant occurs and ․ not the date when the plaintiff first sustains damage ․ Therefore, an action commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations contained in § 52-584, regardless of whether the plaintiff had not, or in the exercise of care, could not reasonably have discovered the nature of the injuries within that time period.”  (Citation omitted;  internal quotation marks omitted.)  Witt v. St. Vincent's Medical Center, 252 Conn. 363, 369, 746 A.2d 753 (2000).

The Supreme Court has also recognized that the repose section of § 52-584 “may be tolled under the continuous treatment or the continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date.”  Martinelli v. Fusi, 290 Conn. 347, 355-56, 963 A.2d 640 (2009).   These doctrines generally apply during an ongoing doctor-patient relationship when it “may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury during a course of treatment ․ [or when] it is appropriate to allow the course of treatment to terminate before allowing the repose section of the statute of limitations to run, rather than having the parties speculate and quarrel over the date on which the act or omission occurred that caused the injury during a course of treatment.”  Blanchette v. Barrett, 229 Conn. 256, 277, 640 A.2d 74 (1994), overruled on the other grounds by Grey v. Stamford Health Systems, 282 Conn. 745, 924 A.2d 831 (2007).  “[A]s a matter of law, [however], both tolling doctrines apply only to the repose portion of the statute and not to the discovery portion.   The discovery portion addresses the plaintiff's 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.”  (Emphasis added.)  Rosato v. Mascardo, 82 Conn.App. 396, 405, 844 A.2d 893 (2004);  see also Grey v. Stamford, supra, fn.5. Thus, in order to determine if the doctrines apply, the date of the actionable harm must be determined.

“ ‘Actionable harm’ occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action ․ A breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence;  they are therefore necessary ingredients for ‘actionable harm.’  ․ Furthermore, ‘actionable harm’ may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another.”  (Citations omitted;  internal quotation marks omitted.)  Tarnowsky v. Socci, 271 Conn. 284, 288, 856 A.2d 408 (2004).

In the present case, the defendants argue that the plaintiff discovered an actionable harm in October 2006.   In support of their argument, the defendants cite the plaintiff's deposition testimony from January 19, 2010 and April 1, 2010, where she states that she contacted a lawyer after her therapist explained to her that one leg was longer than the other, a condition that had not existed prior to the hip replacement surgery, and affirms that she has special shoes for her leg length discrepancy.   The authorization for release of medical information to her attorney, dated October 20, 2006, states that the purpose of the disclosure is for civil litigation.   Additionally, the defendants submitted a writ of summons and complaint, which is substantially similar to the current amended complaint, filed by the plaintiff on February 25, 2009 against the same defendants.   Attached to the complaint, as Exhibit A, is a petition for an automatic 90-day extension of the statute of limitations, granted on September 25, 2008, nearly two years after the surgery was performed.   The evidence submitted by the defendants establishes that the plaintiff had “knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another.”  (Internal quotation marks omitted.)   Tarnowsky v. Socci, supra, 271 Conn. 288.   Thus, the defendants have satisfied their burden of establishing that there is no genuine issue of material fact as to whether the plaintiff discovered an actionable harm in October 2006.

Additionally, the court may consider whether the evidence the nonmoving party submits supports the moving party's claim.   See Allstate Ins. Co. v. Barron, 269 Conn. 394, 409, 848 A.2d 1165 (2004).   In the present case, the plaintiff's own evidence supports the fact that she knew of her injuries in October 2006.   In her deposition testimony, the plaintiff states that one of the defendants, Dr. Lindskog, apologized after informing her that a second surgery was necessary to correct a mistake that had been made during the first surgery.   She further states that throughout her checkups in 2007, 2008 and 2009, she told the doctors that she had swelling and pain.   It is immaterial that, as she attests in her affidavit, the plaintiff only learned in February 2009 that the injury and pain in her lower back and right hip were due to the improper size of the prosthesis at the time of her initial hip replacement surgery because “[t]he statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof ․ Although an expert opinion may lead to discovery of an ‘actionable harm’ ․ it does not follow that a plaintiff cannot reasonably discover an injury absent verification by a qualified expert.”  (Citations omitted;  internal quotation marks omitted.)   Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn.App. 311, 323, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000).   The plaintiff knew about her injuries when she contacted her attorney shortly after her second surgery to discuss a possible “claim for injury arising from the need for the additional surgical procedure.”   Even viewing the evidence in the light most favorable to the non-moving plaintiff, she has failed to provide evidence demonstrating the existence of a genuine issue of material fact as to the date of the discovery of the actionable harm.

Because the evidence presented demonstrates that the plaintiff learned of her injuries in October 2006, the discovery, rather than the repose section of § 52-584 applies in this case and the doctrines of continuing treatment and continuous course of conduct do not apply to toll the statute of limitations.   The statute of limitations began to run in October 2006 and expired in October 2008.   The marshal's return demonstrates that the plaintiff served the defendants on April 30, 2009, outside the statute of limitations.

Accordingly, the evidence demonstrates that the plaintiff discovered an actionable harm in October 2006, and the tolling doctrines of continuous treatment and continuing course of conduct do not apply to toll the statute of limitations.   The defendants have therefore satisfied their burden of establishing that there is no genuine issue of material fact as to the statute of limitations and that they are entitled to judgment as a matter of law.

CONCLUSION

For the foregoing reasons, the defendants' motion for summary judgment is granted.

Wilson, J.

Wilson, Robin L., J.