Victoria Blank, Executrix Estate of Lester Blank v. Genevieve A. John, M.D. et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS

The defendants have moved to dismiss this medical negligence action alleging that said action is barred by the applicable statute of limitations.   The motion is purportedly filed pursuant to Practice Book §§ 10–6 and 10–30 and General Statutes §§ 52–584 and 52–555.

This is a medical negligence action for malpractice and wrongful death allegedly involving treatment rendered at the St. Vincent's Medical Center in October 2007.   The subject action, which is the second action commenced by the plaintiff, has been brought pursuant to General Statutes § 52–593 which reads as follows.

When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action.   If service of process in the original action has been made upon an agent of the defendant named in the new action, or if the defendant in the new action is a corporation and service in the original action has been made upon an officer or agent of the corporation, notice of any claim for damage shall be sufficient if given in the original action, pursuant to statutory provisions, to any officer or agent of the defendant in the new action.

The plaintiff is the Executrix of the Estate of Lester Blank, her deceased spouse.¹  The present complaint contains two counts alleging medical negligence, resulting in death, and loss of consortium, respectively.   This action was instituted by way of a complaint dated February 17, 2010, bearing a return date of March 30, 2010.   The plaintiff had instituted a prior action in this matter against defendants St. Vincent's Medical Center and Kenneth A. Dressler, M.D. of Medical Specialists of Fairfield, LLC. That action was commenced by way of a complaint dated March 9, 2009, bearing a return date of April 14, 2009.   The prior complaint contained two counts alleging medical negligence resulting in death and loss of consortium, respectively.

A review of the pleadings in the plaintiff's first action reveals that the defendants St. Vincent's Medical Center and Dressler filed a motion to dismiss on May 18, 2009 arguing that the plaintiff's written opinion letter did not conform with the requirements of General Statutes § 52–190a in that:  (1) it was not authored by a health care provider similar to the defendant physician Dressler;  and (2) said opinion letter did not provide a detailed opinion that there appeared to be evidence of medical negligence by Dressler.   Prior to the determination of the merits of that motion to dismiss, the plaintiff, on June 10, 2009, withdrew the action against the defendants St. Vincent's Medical Center and Kenneth A. Dressler, M.D.

Thereafter, the plaintiff instituted the present action against Dr. John Genevieve and Primed, LLC, pursuant to General Statutes § 52–593.   The present action is filed more than two years from the date of the alleged medical negligence and death of the decedent.   In reviewing the status of the pleadings in the present matter, the court notes that the subject motion to dismiss was filed on April 26, 2010, and the defendants have not yet filed an answer or any special defenses to the complaint.

On or about December 9, 2010, the court invited the parties to submit a supplemental memorandum of law addressing the additional question of whether a voluntary withdrawal of a prior action constitutes a “failure to obtain a judgment” within the meaning of General Statutes § 52–593.²  Each party has filed a supplemental memorandum of law in response.   Thereafter, the court heard additional oral argument on the motion to dismiss.

I. Standard of Law Re Motion to Dismiss

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․ When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ․ [A] court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”   (Citation omitted;  internal quotation marks omitted.)  Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).   The motion to dismiss shall be used to assert a lack of jurisdiction over the subject matter.  Practice Book § 10–31.³  “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003), superseded by statute on other grounds as stated in Flanagan v. Blumenthal, 100 Conn.App. 255, 260, 917 A.2d 1047 (2007).   A statute of limitations defense “must be specially pleaded and cannot be raised by a [motion to dismiss].”  Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A 2d 74 (1972);  see Practice Book § 10–50.⁴  Nevertheless, “[w]here ․ a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ․ In such cases, the time limitation is not to be treated as an ordinary statute of limitations, but rather is a limitation on the liability itself, and not of the remedy alone ․ [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at anytime, even by the court sua sponte, and may not be waived.”  (Internal quotation marks omitted.)  Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766–67, 628 A.2d 1303 (1993);  see also Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 22–23, 848 A.2d 418 (2004).

II. Discussion

The defendants have moved to dismiss the present action pursuant to General Statutes §§ 52–584 ⁵ and 52–555,⁶ claiming that it is barred by the two-year statutes of limitations and that General Statutes § 52–593 is not applicable to save the plaintiff's action.   The defendants argue that § 52–593 only permits a new action by the plaintiff where there has been an honest, understandable, legitimate and reasonable factual mistake in not naming the present defendants in the prior action, and where the defendants in the prior action are wrong and unintended and the allegations are identical.   Thus, § 52–593 does not permit a new action where the defendants in the prior action were proper or reasonable or deliberately selected or where there was a choice as to which defendants to sue or not to sue.   Accordingly, the defendants state that § 52–593 does not permit a new action where the identities of the defendants named in the new (present) action were clear before the prior action was commenced.   Additionally, the defendants argue that the present complaint is devoid of facts justifying the application of § 52–593, as the complaint fails to allege facts showing that absence of the present defendant Dr. John as a defendant in the prior action was an accident, much less a reasonable, legitimate, understandable or factual accident.   The defendants state that the plaintiff made a clear choice of whom to sue in the prior action and are now seeking to make a different choice with different defendants and different allegations.

The plaintiff, in opposition to the motion to dismiss, argues that the defendants are arguing a statute of limitations defense when the defendants have not yet pleaded a special defense regarding the statute of limitations.   Additionally, the plaintiff argues that whether or not the plaintiffs are entitled to rely upon General Statutes § 52–593 does not implicate the court's subject matter jurisdiction.   For the reasons set forth, the court agrees with the plaintiff and denies the motion to dismiss.

The subject action is a medical negligence claim and is governed by the period of limitation set forth in General Statutes § 52–584.   If this action is, in fact, untimely, it would because it was brought after the expiration of the time period provided by General Statutes § 52–584, and cannot be saved by a savings statute such as General Statutes § 52–592 (accidental failure of suit),⁷ § 52–593 (wrong defendant) or § 52–593a (late service of process).⁸  These savings statutes, as argued by the plaintiff, do not in themselves create or impose a period of limitation on the underlying claim, which is governed by General Statutes § 52–584.   Rather, the savings statutes determine whether the plaintiff can avoid the time bar contained in § 52–584.

The defendants do not claim that the plaintiff failed to file the present action within one year of the termination of the prior action, as provided by General Statutes § 52–593.   The defendants' argument is based on the premise that the plaintiff's action is untimely as it relates to the time limitations set forth in General Statutes § 52–584, which involves a procedural statute of limitations, which is not properly addressed by a motion to dismiss.   General Statutes § 52–593 creates no substantive right which did not exist at common law;  nor does it create any substantive rights or remedies.   General Statutes § 52–593 and its companion statutes only afford a plaintiff relief from a statute of limitations governing the underlying claim, which in this case is § 52–584.   Thus, the limitation period provided by § 52–593 is not jurisdictional.   A motion to dismiss is not the proper procedural mechanism to challenge the plaintiff's use of § 52–593 to bring this second action, as the court's subject matter jurisdiction is not implicated.⁹  In making this determination, the court notes that a motion to dismiss was not the “appropriate procedural vehicle for asserting that an action was not saved by § 52–592,” and that “[t]he proper motion to file would have been a motion for summary judgment.”  Viejas Bank of Kumeyaay Indians v. Lorinsky, 116 Conn.App. 144, 155, n.14 (2009).   The court agrees with the plaintiff that there is no reason why § 52–593 should be regarded differently than § 52–592 in relation to the issue of subject matter jurisdiction.   Should the defendants wish to pursue a statute of limitations defense, they should specially plead it.   They cannot raise it in this instance by way of a motion to dismiss.   See. Ross Realty Corp. v. Surkis, supra, 163 Conn. 391;  see Practice Book § 10–50.

Having determined that a motion to dismiss is the improper procedural pleading to challenge the plaintiff's use of General Statutes § 52–593, the court need not address the additional issue which was raised by the court as to whether a voluntary withdrawal of a prior action constitutes a “failure to obtain a judgment” within the meaning of General Statutes § 52–593.

For the reasons stated herein, the defendants' motion to dismiss is hereby denied.

THE COURT

Richard E. Arnold, J.

FOOTNOTES

FN1. The decedent, Lester Blank, died on October 22, 2007..  FN1. The decedent, Lester Blank, died on October 22, 2007.

FN2. Sec. 52–593 reads as follows:When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action.   If service of process in the original action has been made upon an agent of the defendant named in the new action, or if the defendant in the new action is a corporation and service in the original action has been made upon an officer or agent of the corporation, notice of any claim for damage shall be sufficient if given in the original action, pursuant to statutory provisions, to any officer or agent of the defendant in the new action..  FN2. Sec. 52–593 reads as follows:When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action.   If service of process in the original action has been made upon an agent of the defendant named in the new action, or if the defendant in the new action is a corporation and service in the original action has been made upon an officer or agent of the corporation, notice of any claim for damage shall be sufficient if given in the original action, pursuant to statutory provisions, to any officer or agent of the defendant in the new action.

FN3. Practice Book Sec. 10–31(a)—Grounds of Motion to Dismiss reads as follows:(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process.   This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record..  FN3. Practice Book Sec. 10–31(a)—Grounds of Motion to Dismiss reads as follows:(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process.   This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.

FN4. Practice Book Sec. 10–50—Denials;  Special Defenses reads as follows:No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue.   Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged.   Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiff's own.(Emphasis supplied.)  Id..  FN4. Practice Book Sec. 10–50—Denials;  Special Defenses reads as follows:No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue.   Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged.   Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiff's own.(Emphasis supplied.)  Id.

FN5. Sec. 52–584.   Limitation of action for injury to person or property caused by negligence, misconduct or malpractice reads as follows: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 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, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed..  FN5. Sec. 52–584.   Limitation of action for injury to person or property caused by negligence, misconduct or malpractice reads as follows: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 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, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.

FN6. Sec. 52–555.   Actions for injuries resulting in death reads as follows:(a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of.(b) Notwithstanding the provisions of subsection (a) of this section, an action may be brought under this section at any time after the date of the act or omission complained of if the party legally at fault for such injuries resulting in death has been convicted or found not guilty by reason of mental disease or defect of a violation of Section 53a–54a, 53a–54b, 53a–54c, 53a–54d, 53a–55 or 53a–55a with respect to such death..  FN6. Sec. 52–555.   Actions for injuries resulting in death reads as follows:(a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of.(b) Notwithstanding the provisions of subsection (a) of this section, an action may be brought under this section at any time after the date of the act or omission complained of if the party legally at fault for such injuries resulting in death has been convicted or found not guilty by reason of mental disease or defect of a violation of Section 53a–54a, 53a–54b, 53a–54c, 53a–54d, 53a–55 or 53a–55a with respect to such death.

FN7. General Statutes § 52–592 provides:(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form;  or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.(b) When any action has been brought against an executor or administrator or continued against an executor or administrator after the death of the defendant and has failed for any of the causes listed in subsection (a) of this section, the plaintiff, or his executor or administrator in case a cause of action survives, may commence a new action within six months after the determination of the original action.(c) If an appeal is had from any such judgment to the Supreme Court or Appellate Court, the time the case is pending upon appeal shall be excluded in computing the time as above limited.(d) The provisions of this section shall apply to any defendant who files a cross complaint in any action, and to any action between the same parties or the legal representatives of either of them for the same cause of action or subject of action brought to any court in this state, either before dismissal of the original action and its affirmance or within one year after the dismissal and affirmance, and to any action brought to the United States circuit or district court for the district of Connecticut which has been dismissed without trial upon its merits or because of lack of jurisdiction in such court.   If such action is within the jurisdiction of any state court, the time for bringing the action to the state court shall commence from the date of dismissal in the United States court, or, if an appeal or writ of error has been taken from the dismissal, from the final determination of the appeal or writ of error.(e) The provisions of this section shall apply to any claim against the state for which a notice of claim has been properly and timely filed with the Office of the Claims Commissioner in accordance with Sections 4–147 and 4–148 and which thereafter has been dismissed by the Claims Commissioner pursuant to Section 4–142..  FN7. General Statutes § 52–592 provides:(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form;  or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.(b) When any action has been brought against an executor or administrator or continued against an executor or administrator after the death of the defendant and has failed for any of the causes listed in subsection (a) of this section, the plaintiff, or his executor or administrator in case a cause of action survives, may commence a new action within six months after the determination of the original action.(c) If an appeal is had from any such judgment to the Supreme Court or Appellate Court, the time the case is pending upon appeal shall be excluded in computing the time as above limited.(d) The provisions of this section shall apply to any defendant who files a cross complaint in any action, and to any action between the same parties or the legal representatives of either of them for the same cause of action or subject of action brought to any court in this state, either before dismissal of the original action and its affirmance or within one year after the dismissal and affirmance, and to any action brought to the United States circuit or district court for the district of Connecticut which has been dismissed without trial upon its merits or because of lack of jurisdiction in such court.   If such action is within the jurisdiction of any state court, the time for bringing the action to the state court shall commence from the date of dismissal in the United States court, or, if an appeal or writ of error has been taken from the dismissal, from the final determination of the appeal or writ of error.(e) The provisions of this section shall apply to any claim against the state for which a notice of claim has been properly and timely filed with the Office of the Claims Commissioner in accordance with Sections 4–147 and 4–148 and which thereafter has been dismissed by the Claims Commissioner pursuant to Section 4–142.

FN8. Sec. 52–593a states as follows:(a) Except in the case of an appeal from an administrative agency governed by Section 4–183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery.(b) In any such case, the state marshal making service shall endorse under oath on such state marshal's return the date of delivery of the process to such state marshal for service in accordance with this section..  FN8. Sec. 52–593a states as follows:(a) Except in the case of an appeal from an administrative agency governed by Section 4–183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery.(b) In any such case, the state marshal making service shall endorse under oath on such state marshal's return the date of delivery of the process to such state marshal for service in accordance with this section.

FN9. The court is aware of, and has reviewed its previous decision in Valentin v. X Bankers Check Cashing, Superior Court, judicial district of Fairfield at Bridgeport, No. CV 066000557 S (Feb. 15, 2008, Arnold, J.), 45 Conn. L. Rptr. 124.   There is no indication that either party to that action objected to the use of a motion to dismiss as the proper procedural pleading, or that the court was requested to undertake an analysis of the types of issues presently before the court.   This court acknowledges the importance of the doctrine of stare decisis, however, when presented with compelling legal argument accompanied by convincing appellate authority, this court will not be so inflexible as to refuse to review its previous decision..  FN9. The court is aware of, and has reviewed its previous decision in Valentin v. X Bankers Check Cashing, Superior Court, judicial district of Fairfield at Bridgeport, No. CV 066000557 S (Feb. 15, 2008, Arnold, J.), 45 Conn. L. Rptr. 124.   There is no indication that either party to that action objected to the use of a motion to dismiss as the proper procedural pleading, or that the court was requested to undertake an analysis of the types of issues presently before the court.   This court acknowledges the importance of the doctrine of stare decisis, however, when presented with compelling legal argument accompanied by convincing appellate authority, this court will not be so inflexible as to refuse to review its previous decision.

Arnold, Richard E., J.