Francisco Hernandez v. Robert Dudek, M.D. (2011)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT # 127

BACKGROUND

The plaintiff filed this medical malpractice action on April 20, 2009.   The plaintiff alleges he suffered injuries as the result of the alleged negligence of the defendant doctor during a surgical repair of the plaintiff's rotator cuff on or about September 27, 2006.

The defendant has filed this motion claiming the plaintiff's claim is barred by the Statute of Limitations, Connecticut General Statutes § 52–584.   The defendant argues the plaintiff knew more than two years before this action was commenced that he had suffered actionable harm.   The defendant argues that the plaintiff believed in October of 2006 that the defendant doctor (Dr. Dudek) did not perform his shoulder surgery properly.  (Plaintiff's deposition taken on January 25, 2010, Exhibit B.)

The defendant requests the court grant his motion as there is no genuine issue of material fact that the two-year statute of limitation expired.

DISCUSSION

AThe Legal Standard

“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).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at the liberty to disbelieve and which would require a directed verdict for the moving party ․ [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”   (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

“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 ․ 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 ․” (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).

General Statutes § 52–584 provides in relevant part:  “No action to recover damages for injury to the person ․ caused by negligence ․ 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 ․

Section 52–584 “imposes two specific time requirements on plaintiffs.   The first requirement, referred to as the discovery portion ․ 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 ․” Rosato v. Mascarado, 82 Conn.App. 396, 401–02 (2004).

In the case of Lagassey v. State of Connecticut, the Connecticut Supreme Court explained “the legal standard by which to evaluate the timeliness of causes of action in negligence.”  268 Conn. 723, 748 (2004).   The relevant inquiry is “when the injury is first discovered or in the reasonable exercise of care should have been discovered.”  Id.

In this regard, the term injury is synonymous with legal injury or actionable harm[, which] occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action.”  Id.

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.  Taylor v. Winsted Memorial Hospital 262 Conn. 797, 810 (2003).

The defendant argues that Mr. Hernandez' deposition testimony also demonstrates that Mr. Hernandez knew of his “actionable harm” at the time of his postoperative visit with Dr. Dudek on October 6, 2006 and expressed his concerns to Dr. Trinloff when he was evaluated on November 27, 2006.   As he did not bring his cause of action within two years of the date on which he had knowledge of actionable harm, that is, on or before November 27, 2008, his cause of action is time-barred.

English is not the first language of the plaintiff.   He has some difficulty in communicating and understanding English (Affidavit of plaintiff).

This court finds there is a genuine issue of material fact as to when the plaintiff discovered or in the exercise of reasonable care should had discovered the causal nexus between the worsening condition of his shoulder and the alleged negligent conduct of the defendant doctor.

The defendant's motion is hereby denied.

Brian T. Fischer, J.

Fischer, Brian T., J.