Hector Lopez v. David Brown, M.D. (2013)

MEMORANDUM OF DECISION

FACTS

The Plaintiff, Hector Lopez, brings this action to recover for injuries and damages he claims to have sustained, as the result of the negligence of the Defendant, Dr. David Brown, M.D.

In October 2008, the Plaintiff consulted Dr. Brown concerning recurring pain in the area of his neck and shoulders, and in the upper arm.   On March 12, 2009, Dr. Brown, a board certified orthopaedic surgeon performed an operation on the Plaintiff.   The procedure involved an anterior cervical diskectomy and fusion of the C4–5, C5–6 and C7–8 vertebrae.

Following the surgery, Hector Lopez continued to experience the symptoms he had endured prior to the surgery.   He continued to seek medical treatment, and continued to see Dr. Brown until August of 2003.

After concluding his treatments with Dr. Brown, the Plaintiff consulted with Dr. Khalid Abbed, M.D., of Yale Neurosurgery, and reported that his symptoms had worsened since the surgery in March of 2009.

Dr. Abbed ordered a CT scan, which was performed.

Hector Lopez states that he met with Dr. Ahbed on Mach 23, 2010.   At that time, he was informed that the cause of his continuing pain and discomfort was that the surgical hardware implanted during the March 2009 surgery, was not properly aligned.   Dr. Abbed recommended the removal of the anterior plate and screws, followed by a “posterior C4 to C7 instrumented stabilization and fusion.”  (See signed report dated March 23, 2010).

The Plaintiff maintains that he was unaware of the misalignment or misplacement of the surgical hardware until March 23, 2010.

On July 29, 2010, pursuant to S.52–190a(b) 1 of the General Statutes, the Plaintiff filed for an extension of time, within which to institute an action claiming medical negligence.

A writ, summons and complaint dated November 2, 2011, was served upon the Defendant, Dr. David M. Brown, M.D. but was never returned to court.   At the time of service, the Plaintiff did not have a certificate of good faith, signed by a similar health care provider, as required by S.52–190a(a) 2 of General Statutes.

This action, which is dated May 4, 2012, was served upon the Defendant, and was returned to court on June 5, 2012.

The Defendant, Dr. David M. Brown, now moves to dismiss this action, claiming that it is barred by the provisions of the applicable statute of limitations.

SUMMARY JUDGMENT—STANDARD OF REVIEW

Practice Book S.17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law.   The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact.  Neuhaus v. Decholnoky, 280 Conn. 190, 199 (2006);  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105 (1994).   A material fact has been defined as one which will make a difference in the result of a case.   United Oil Co. v. Urban Redevelopment Commission, 150, Conn. 364, 379 (1969).

A motion for summary judgment may be granted only when affidavits and other documentary evidence demonstrate that no genuine issue of material fact exists or remains between the parties and that judgment should enter in favor of the moving party.  Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11 (1983).   The test to be applied is whether the party seeking summary judgment would be entitled to a directed verdict, were the trial to a jury.  United Oil Co. v. Urban Redevelopment Commission, supra, 380.

Summary judgment is appropriate, in a situation in which a claim is barred by the statute of limitations.  Lindsay v. Pierre, 90 Conn.App. 696, 699 (2005).

THE QUESTION OF THE STATUTE OF LIMITATIONS PRESENTS A GENUINE ISSUE OF MATERIAL FACT

This action is governed by S. 52–584 of the General Statutes.

The statute reads:

“No action to recover injury for damage to the person ․ caused by ․ malpractice of a physician ․ 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 action may be brought more than three years from the date of the act or omission complaint of.”

The three-year period of repose bars any action commenced more than three years from the date of the act or omission complained of, even if the Plaintiff had not, or could not discover the injury within the three year period.   Witt v. St. Vincent's Medical Center, 252 Conn. 363, 369 (2000).

Here, the Plaintiff requested and obtained a ninety-day extension within which to commence an action, pursuant to the provisions of S. 52–190a(b) of the General Statutes.   The ninety day extension is applicable, whether the particular case involves the two year period, or the three year period of repose.  Barrett v. Montessano, 269 Conn. 787, 796 (2011).

Consistent with S. 52–584, the limitation period begins to run on the date when the Plaintiff discovers, or should have discovered an injury.   An injury occurs, when a party suffers some form of actionable harm.  Lambert v. Stovell, 205 Conn. 1, 6 (1987).   That determination, is fact specific, and is generally a question of fact.  Lagassey v. State, 269 Conn. 723, 739 (2004);  Catz v. Rubenstein, 201 Conn. 39, 49 (1986).

In this case, the Plaintiff claims to have first discovered the injury, on March 23, 2010, when he was informed that the hardware implanted during the operation was misaligned.   Based upon the ninety-day extension, and construing all facts most favorable to the Plaintiff, any action was required to be commenced on or before June 10, 2012.   That date is ninety days from March 12, 2012, which is three years from the date of the act or omission complained of.

The action was properly commenced within ninety days of March 12, 2012, and therefore the motion for summary judgment, must be DENIED.

RADCLIFFE, J

FOOTNOTES

FN1. Section 52–190a(b), C.G.S.—Upon petition to the clerk of the court where the civil action will be filed to recover damages resulting from personal injury or wrongful death, an automatic ninety day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection a of this section.   This period shall be in addition to other tolling periods.”.  FN1. Section 52–190a(b), C.G.S.—Upon petition to the clerk of the court where the civil action will be filed to recover damages resulting from personal injury or wrongful death, an automatic ninety day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection a of this section.   This period shall be in addition to other tolling periods.”

FN2. Section 52–190a(a), C.G.S.—”No action ․ shall be filed to recover damages resulting from personal injury ․ in which it is alleged that such injury ․ resulted from the negligence of a health care provider, unless the attorney or party filing the action ․ has made a reasonable inquiry ․ to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant ․ the claimants attorney shall obtain a written and signed opinion of a similar health care provider ․ that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion ․”.  FN2. Section 52–190a(a), C.G.S.—”No action ․ shall be filed to recover damages resulting from personal injury ․ in which it is alleged that such injury ․ resulted from the negligence of a health care provider, unless the attorney or party filing the action ․ has made a reasonable inquiry ․ to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant ․ the claimants attorney shall obtain a written and signed opinion of a similar health care provider ․ that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion ․”

Radcliffe, Dale W., J.