Edward Mahoney v. Bridgeport Hospital et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 132.00)

FACTS

The plaintiff, Edward Mahoney, commenced this medical malpractice action by service of process on the defendants, Bridgeport Hospital (hospital) and Advanced Radiology Consultants, LLC, (Advanced Radiology) on April 27, 2009 and service of process on the defendant Charlynn Maniatis on May 6, 2009.   The writ of summons, complaint, certificate of good faith and two physician opinion letters were filed with the court on May 21, 2009.   The hospital, Advanced Radiology and Maniatis, hereinafter referred to as the defendants, all filed an appearance through their counsel on May 28, 2009.

As background, the orthopedic surgeon's opinion letter states that on May 17, 2006, the plaintiff fell eighteen feet, hitting his right hand on a table and landing on his feet.   The plaintiff was then taken to the emergency department at the hospital.   The plaintiff alleges the following facts in his complaint.   The hospital provided health care to the general public and the plaintiff in May of 2006.   The hospital operated a joint venture or other contractual arrangement with Advanced Radiology in which Advanced Radiology agreed to provide radiological and imaging procedures for patients of the hospital.   Maniatis was a physician specializing in radiology and was a servant, agent or employee of the hospital and Advanced Radiology.   Beginning in or about May 2006, “and continuing continuously until on or about May 16, 2007,” the plaintiff received a medical diagnosis, treatment, care and monitoring from the defendants in the emergency room and orthopedic clinic of the hospital.

The plaintiff further alleges that during this time the defendants failed to accurately interpret and properly read an x-ray and “properly and timely identify the fracture” of his right ankle, and improperly instructed the plaintiff to bear weight on his right foot as much as tolerable.   The plaintiff further alleges that the hospital and Advanced Radiology failed to provide physicians with the requisite skill and to promulgate rules and protocols for the proper treatment of patients like the plaintiff.   As a result of the alleged carelessness and negligence of the defendants, the plaintiff claims a collapse of his right heel which causes chronic pain and difficulty in bearing weight or walking, and will require fusion surgery in the future.

Each defendant filed a separate answer, with a special defense that the plaintiff's cause of action is barred by the two-year statute of limitations, General Statutes § 52–584.   On January 31, 2011, the defendants filed a motion for permission to file summary judgment.   That same day, the defendants filed their motion for summary judgment on the ground that the plaintiff did not timely commence this suit, with a memorandum of law in support of their motion and a number of exhibits.   This court granted permission to file summary judgment on February 14, 2011.   The plaintiff filed his objection with a memorandum of law in opposition to the motion for summary judgment on April 14, 2011, and the defendants filed a reply memorandum on April 25, 2011.   The parties argued the motion at short calendar on May 3, 2011.

DISCUSSION

“Practice Book § 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 fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).

“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 for summary judgment 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 ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”   Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

I

Documentary Evidence

The plaintiff initially argues in his objection to the defendants' motion for summary judgment that the motion should be denied because the defendants have failed to submit properly authenticated documents,¹ specifically excerpts from the deposition testimony of the plaintiff.   The defendants, in an attempt to cure the authentication defects, attach to their reply memorandum an affidavit of Patrick Noonan, the defendants' attorney, in which he swears that the copy of the excerpts provided is a true and accurate copy of the original.

“Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”  (Internal quotation marks omitted.)  Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 467, 976 A.2d 23 (2009);  accord New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).

“[G]enerally an affidavit by a party's attorney should not be used to oppose a summary judgment motion ․” 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 567, 636 A.2d 1377 (1994).   An attorney's affidavit can be accepted, however, if it does not attest to facts of the case but it merely authenticates other proffered documents.   See Daniels v. Ericson, Superior Court, judicial district of New London, Docket No. CV 06 5001423 (July 17, 2007, Hurley, J.T.R.) (“The affidavit, however, does not set forth facts to show a genuine issue of material fact;  but merely serves to authenticate the other documents submitted ․ Since the affidavit is properly sworn and is based on the personal knowledge of her attorney regarding the origin of the other documents, it is admissible”);  see also Cooley v. Fidco, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 95 0068875 (July 24, 1996, Picket, J.) (holding the attorney “is simply attesting to the accuracy of the certified copies of the deposition transcripts also supplied in support of the motion for summary judgment and as such, the court will consider the affidavit as being one that does not provide testimony on a material matter”).

In the present case, the defendants submit excerpts from the deposition of the plaintiff which included the cover page stating the deposition was taken before a notary public;  however, the defendants did not include a copy of the certification page.   The plaintiff correctly points out that such a submission is not properly authenticated without certification or an accompanying affidavit.   The defendants did, however, submit an affidavit by their counsel, Attorney Noonan, in order to authenticate the transcripts.   Since this affidavit merely seeks to authenticate documents and the affiant is competent to testify, his affidavit is based on personal knowledge, and the statements show that the copy of the deposition transcript is an accurate copy of the original certified deposition, the evidentiary deficiency is cured.   The plaintiff also submitted portions of his same deposition transcript with the certification attached, and the court will consider the deposition transcript excerpts submitted by the defendants as well as the plaintiff.

II

Statute of Limitations

As indicated above, the defendants move for summary judgment on the ground that the plaintiff's claims are time barred under § 52–584.   The defendants further argue in their memorandum in support of their motion that the plaintiff cannot rely on the continuing course of conduct and continuous treatment doctrines to toll the statute of limitations because he discovered his injuries in May 2006, or, at the latest, in June 2006.   Alternatively, the defendants argue that even if the continuous treatment doctrine did apply, the plaintiff cannot prove certain elements required before the statute of limitations will be tolled against Associated Radiology and Maniatis.   In support of their motion, the defendants submitted medical records created by the hospital and Advanced Radiology on May 17, June 28, July 12, August 9, and October 18, 2006, excerpts of the deposition of the plaintiff, the return of service for all defendants, and excerpts of the deposition of Maniatis.

In response, the plaintiff counters that he does not rely on any tolling doctrines.   Instead, in his objection to the motion, the plaintiff argues that the defendants have not met their burden of establishing that there is no genuine issue of fact as to when the present action accrues under the statute of limitations.   The plaintiff maintains that the evidence demonstrates he did not discover an actionable harm until a few months before bringing suit, rather than in 2006 as the defendants claim, which creates an issue of fact as to when the statute of limitation time period begins to run.   In support of his objection, the plaintiff attaches an affidavit of Joel Lichtenstein, and one of Carey Reilly, each of whom are the plaintiff's attorneys, an affidavit of the plaintiff, the return of service for all defendants, the medical records from the plaintiff's visit to the hospital on May 17, 2006, and May 16, 2007, and certified and authenticated excerpts from the deposition of the plaintiff.

“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).   It is appropriate to grant summary judgment on statute of limitation 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 statute of limitations governing a medical negligence suit is § 52–584, which provides in relevant part that “[n]o action to recover damages for injury to the person ․ caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon ․ hospital ․ 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 ․” The Supreme Court “has previously stated that [§ ]52–584 requires that the injured party bring suit within two years of discovering the injury ․ In this context injury occurs when a party suffers some form of actionable harm ․ 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.”   (Citations omitted;  internal quotation marks omitted.)  Catz v. Rubenstein, 201 Conn. 39, 43–44, 513 A.2d 98 (1986).  “Thus, after Catz, it was clear that the limitation period in § 52–584 does not begin to run until a plaintiff has knowledge or in the exercise of reasonable care should have had knowledge of sufficient facts to bring a cause of action against a defendant, which, in turn, requires that a plaintiff is or should have been aware that he or she has an injury that was caused by the negligence of the defendant.”   Lagassey v. State, 268 Conn. 723, 743–44, 846 A.2d 831 (2004).

“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 ․ In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run;  a party need only have suffered some form of actionable harm ․ Finally, the determination of when a plaintiff in the exercise of reasonable care should have discovered actionable harm is ordinarily a question reserved for the trier of fact.”  (Internal quotation marks omitted.)   Mollica v. Toohey, Superior Court, judicial district of Ansonia–Milford at Derby, Docket No. CV 06 5000415 (June 4, 2010, Bellis J.);   citing Lagassey v. State, supra, 268 Conn. 749.   In a recent case, the Superior Court held that evidence suggesting the plaintiff knew about her injury for some time, but did not discover the actionable harm until an expert witness pointed out a deviation from the standard of care created an issue of fact as to when the cause of action accrued.   Fuller v. Manchester Obstetric & Gynecology Associates, Superior court, judicial district of Hartford, Docket No. CV 07 5012261 (June 3, 2011, Robaina, J.).

Here, the return of service establishes that the suit was commenced against the defendants on April 27, 2009, and May 6, 2009.   The defendants argue that the plaintiff's deposition testimony establishes that the plaintiff discovered an actionable harm on June 28, 2006 at the latest.   The plaintiff testified to seeing Schlien, his treating doctor at the hospital, for follow up x-rays and care in June of 2006, with the plaintiff's exact testimony regarding what he discovered in June of 2006 is as follows:

“Q. And when did you begin to think that someone had done something wrong with your care?

“A. When the doctor—when Schlien said that this was broke.   That's when I knew it.   When I was going for therapy for this for 10 weeks, and I will take it from there.

“Q. So at the time you thought someone had done something wrong is when Dr. Schlien told you?

“A. I knew there was something wrong.   After a few days—he said keep that up for two days.   It was still swollen.   I couldn't move my foot down, no.

“Q. So after a couple of days you thought there was something seriously wrong with your ankle?

“A. Yes.

“Q. And at that point, did you think that somebody at the hospital had messed up?

“A. Well I knew something.   I knew it.”   Thus, the defendants have submitted evidence that the plaintiff knew there was something wrong with his ankle or foot a few days after the accident, and he thought that something had gone wrong with his care when Schlien told him that his foot was broken in June of 2006.   The testimony does not clarify whether the plaintiff knew the defendants had breached a duty of care, or that such a breach had caused him any injury beyond what the initial accident had caused.   While it is true that a harm does not need to reach its fullest manifestation in order for an action to accrue, the plaintiff must know or should have been able to reasonably discover all the elements of a cause of action before the time period will begin to run.   In the present case, the defendants have not established that the plaintiff knew, or should have known, in June of 2006, that the defendants breach of duty caused him harm beyond what he suffered from his fall.

The plaintiff attaches to his objection to the motion his affidavit in which he testifies as follows:  “I first began to think that the defendants had done something wrong with my care when Dr. Schlien told me on June 28, 2006 that my heel was broken.   I did not even consider filing a law suit until after I had ended treatment with Dr. Schlien in May of 2007.   The first time I learned that I has [sic] suffered any harm caused by the defendants' negligence was in March or April 2009, when I learned that my lawyers were filing a lawsuit on my behalf.   Before that time, although I knew that I had suffered a broken heel that had not been diagnosed by the defendants, I did not know whether this had caused me any harm.”

In Fuller v. Manchester Obstetric & Gynecology Associates, supra, Superior Court, Docket No. CV 07 5012261, the plaintiffs believed that medical malpractice could have occurred and even retained an attorney prior to two years before suit was filed, however, the court found that retaining an attorney was not enough to support an inference that the plaintiff was aware of an actionable harm.   The court held that the plaintiffs' evidence that they did not discover an actionable harm until a medical expert found negligence created a genuine issue of fact as to whether the plaintiffs first discovered an actionable harm at that time, or earlier when they retained an attorney.   Similarly, the plaintiff in the present case alleges that he was certainly aware that his ankle and heel were seriously injured in May and June of 2006, as he had an accident at work.   He also testifies that he thought something went wrong with his care after seeing Schlien, but he was not aware that the defendants breached a duty of care, or were the cause of injury to his heel and ankle until a medical expert made that conclusion.   The evidence presented by the defendants does not show the absence of a genuine issue of material fact as to when the plaintiff was aware of a causal connection between his injuries and the defendants' actions.   Because of the uncertainties in the evidence presented, there remains a genuine issue of fact as to when the plaintiff discovered an actionable harm, and when the statute of limitations began to run.

CONCLUSION

For the foregoing reasons, genuine issues of material fact still exist as to when a cause of action accrued under the applicable statute of limitations, and therefore, the defendants' motion for summary judgment is denied.

By the Court,

BELLIS, J.

FOOTNOTES

FN1. Although the plaintiff argues that the defendants have failed to submit properly authenticated documents in support of their motion for summary judgment, he does not raise this issue regarding any document other than the deposition transcript.   In addition, both parties presented other documentary evidence that requires authentication, to which neither party made any objections.   The court in its discretion may consider unauthenticated documentary evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006);  Sales Team Staffin, Inc. v. GHP Media, Inc., Superior Court, judicial district of Ansonia–Milford, Docket No. CV 09 6001329 (May 28, 2010;  Bellis, J.) (50 Conn. L. Rptr. 18, 20 n.5).   Therefore, this court may, and will, consider the documentary evidence not objected to in the present case..  FN1. Although the plaintiff argues that the defendants have failed to submit properly authenticated documents in support of their motion for summary judgment, he does not raise this issue regarding any document other than the deposition transcript.   In addition, both parties presented other documentary evidence that requires authentication, to which neither party made any objections.   The court in its discretion may consider unauthenticated documentary evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006);  Sales Team Staffin, Inc. v. GHP Media, Inc., Superior Court, judicial district of Ansonia–Milford, Docket No. CV 09 6001329 (May 28, 2010;  Bellis, J.) (50 Conn. L. Rptr. 18, 20 n.5).   Therefore, this court may, and will, consider the documentary evidence not objected to in the present case.

Bellis, Barbara N., J.