Jennifer Edwards v. Leland J. Soto et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 152

INTRODUCTION

The matter before the court is defendants' motion for summary judgment as to counts four, five, seven, eight, nine and ten of the plaintiff's fifth revised complaint on the following grounds:  (1) judgment is proper as to count four because the plaintiff cannot establish the elements of negligent infliction of emotional distress and has not provided expert testimony supporting this count;  (2) judgment is proper as to count five because a hospital does not owe a duty to ensure that an individual has given informed consent prior to a procedure and (3) judgment is proper as to counts seven through ten because each of these counts is barred by the applicable statute of limitations contained in General Statutes § 52–584.

I. SUMMARY OF FACTS

Before the court is the defendants', Griffin Health Services Corporation (Griffin Hospital), Doctor Scott Vander Vennet and Scott Vander Vennet MD, LLC (collectively “the defendants”), motion for summary judgment as to all counts of the complaint against them.   On April 27, 2009, the plaintiff, Jennifer Edwards, an adult, filed an eleven-count complaint.   That complaint named as additional defendants, who are not parties to the present motion, Doctor Joel Allen, Allen's direct employer Associates in Family Health PC, Doctor Leland Soto, Soto's direct employer General Laparoscopic Surgical Associates, LLC and Southwest Community Health Center, Inc.¹ Subsequently, the plaintiff has filed six revised complaints.   The operative complaint for the purposes of this motion is the plaintiff's fifth revised complaint, which contains ten counts in total, six of which are the subject of the present motion:  counts four, five, seven, eight, nine and ten.   It was filed on February 20, 2013.²

In her complaint, the plaintiff alleges the following facts.   In January of 2007, the plaintiff was the patient of Allen and had been for several years.   On January 3, 2007, the plaintiff was at Griffin Hospital where Allen and Vander Vennet, both gynecologists and members of the hospital staff at Griffin Hospital, performed a myomectomy ³ upon the plaintiff to remove several uterine fibroids.   During the course of the procedure, Allen perforated the plaintiff's small bowel ⁴ several times and in more than one location, in one instance nearly transecting the bowel in its entirety.   Allen repaired the more minor of the perforations, but did not conduct any additional exploration of the bowel to ensure that there was no further damage, nor did he call for a general surgeon to do so.   Accordingly, he did not discover that he had almost entirely transected the bowel.

Subsequently, on January 6, 2007, Allen and Soto, a general surgeon, discovered the plaintiff's transected bowel and performed an emergency surgery to repair it.   Although they repaired the transected bowel, they did not perform an ileostomy ⁵ upon the plaintiff.   On January 15, 2007, the plaintiff presented with persistent leukocytosis ⁶ and the draining of intestinal contents from her surgical wounds.   Accordingly, Allen and Soto performed a third emergency surgery, this time conducting an ileostomy.   Thereafter, on February 13, 2007, the plaintiff continued to present with leukocytosis and sepsis, required the removal of significant necrotic tissue from her abdominal cavity and continued to experience severe pain.   The allegations of the complaint indicate that the plaintiff was hospitalized for much of the month of January 2007, requiring additional hospitalization in February 2007.

In addition to the above, the plaintiff alleges that sometime following January 3, 2007, she became increasingly anxious and upset with Allen's conduct and requested that he cease attending to her medical care.   The plaintiff does not allege that she ever expressed this directly to Dr. Allen.   Rather, the plaintiff expressed her concerns to Griffin Hospital staff, and alleges that she was assured by the staff that Allen would have no further contact with her.   Nevertheless, Allen was observed in the plaintiff's hospital room after he was allegedly advised by hospital staff that he was not permitted to have contact with the plaintiff.

As a result of the alleged breach of the standard of care provided by Allen and the defendants, the plaintiff suffered several injuries, including pain, discomfort, anxiety, and depression, loss of time from work and loss of the ability to pursue other endeavors.   The plaintiff alleges that her injuries were caused by Allen and the defendants in that Allen and Vander Vennet did not administer a bowel cleansing medication prior to the surgery;  did not provide the plaintiff with information concerning all the material risks of the surgery so as to adequately inform her of those risks and properly obtain her consent for the procedure;  did not perform a complete exploration of the plaintiff's bowel once they realized it had been perforated;  and failed to perform an ileostomy during the January 6, 2007 emergency surgery.   The plaintiff also alleges that she would not have elected to undergo the myomectomy had she been properly apprised of the risks.

On December 15, 2008, the plaintiff requested an automatic ninety-day extension of the applicable limitations pursuant to Gen.Stat. § 52–190a so that she could obtain the letter of good faith required by that section and make service of process upon the defendants.   Relevant to the present motion, the marshal's return indicates that Vander Vennet and Vander Vennet MD, LLC were both served on April 17, 2007.

The following additional relevant and undisputed facts are derived from the plaintiff's deposition, taken on March 12, 2012 and June 8, 2012 (Plaintiff's Deposition), and which the defendants submitted in support of their motion.   The plaintiff began seeing Allen as her primary gynecologist through his private practice in 1998.   Plaintiff's Deposition, p. 50.   Allen proceeded to provide substantially all of the plaintiff's regular gynecological services through January of 2007.   Plaintiff's Deposition, p. 51.   Subsequent to January of 2007, the plaintiff began seeing a different gynecologist.   Plaintiff's Deposition, p. 51.

Following the January 6, 2007 emergency surgery, the plaintiff decided that she did not want Allen involved in her care anymore, and informed her mother of this fact.   Plaintiff's Deposition, p. 193.   Accordingly, the plaintiff's mother informed either the Griffin Hospital administration or Soto that the plaintiff did not want Allen involved in her care any longer.   Plaintiff's Deposition, p. 193.   Nevertheless, the plaintiff never directly informed Allen that she no longer desired to see him.   Plaintiff's Deposition, p. 206.   In addition, the present record before the court does not conclusively reveal whether any of the plaintiff's family members directly informed Allen that the plaintiff no longer desired to be treated by him;  see Plaintiff's Deposition, pp. 206–07;  and the plaintiff testified that she does not possess any other record of any attempt to do so.   Plaintiff's Deposition, p. 207.   The plaintiff made no other attempts to express to Allen her desire not to see him, except to turn her head away from him whenever he came to see her in her hospital room subsequent to the January 6, 2007 emergency surgery.   Plaintiff's Deposition, p. 208.

Doctor Allen continued to visit the plaintiff approximately five or six times following the January 6, 2007 emergency surgery.   Plaintiff's Deposition, pp. 47–49, 189.   On one occasion, Allen offered to buy the plaintiff an iPod or DVD player to help her pass the time.   Plaintiff's Deposition, pp. 47–49.   There is no evidence that Allen provided medical care to the plaintiff after the January 6, 2007 surgery.   Although the record does not conclusively reveal whether the Griffin Hospital administration informed Allen that he was not to see the plaintiff, during one of Allen's visits, a Griffin Hospital nurse identified as “Maria,” who the plaintiff testified was her nurse during her stay in the intensive care unit, entered the plaintiff's room and informed Allen that he had to leave, but did not explain the reason.   Plaintiff's Deposition, p. 190.   Sometime later, plaintiff claims that an unidentified physician's assistant informed the plaintiff that she had found Allen outside the plaintiff's room, but that Allen had said he had to see another patient and did not enter.   Plaintiff's Deposition, pp. 191–92.   The plaintiff testified that she was aware of no other efforts on the part of the Hospital or its employees to prevent Allen from seeing the plaintiff.   Plaintiff's Deposition, p. 206.

Immediately following the January 6, 2007 emergency surgery, the plaintiff, while still in the hospital, requested that her mother begin seeking the services of an attorney.   Plaintiff's Deposition, pp. 118–20.   The plaintiff testified that this was because she and her family suspected that “something was wrong”;  Plaintiff's Deposition, p. 118;  and that on that date her mother began looking at her charts to try and determine what was going on.   Plaintiff's Deposition, pp. 177–78.

Counts four and five of the complaint allege causes of action for negligent infliction of emotional distress and the failure to obtain informed consent against Griffin Hospital.   Counts seven and eight allege causes of action for negligence and the failure to obtain informed consent against Vander Vennet.   Finally, counts nine and ten allege causes of action for negligence and the failure to obtain informed consent against Vander Vennet, MD, LLC.⁷

On March 26, 2013, the defendants filed their motion for summary judgment on the grounds that:  (1) judgment is proper as to count four because the plaintiff cannot establish the elements of negligent infliction of emotional distress and has not provided expert testimony supporting this count;  (2) judgment is proper as to count five because a hospital does not owe a duty to ensure that an individual has given informed consent prior to a procedure;  and (3) judgment is proper as to counts seven through ten because each of these counts is barred by the applicable statute of limitations contained in General Statutes § 52–584.⁸  The motion is accompanied by a memorandum of law, excerpts of the deposition of the plaintiff, a copy of the marshal's return of service and a copy of the plaintiff's petition for a ninety-day extension of the statute of limitations pursuant to § 52–190a.⁹  On May 6, 2013, the plaintiff filed a memorandum in opposition to plaintiff's motion for summary judgment.¹⁰  It contains substantive responses to the defendants' first and third grounds, but not the second, and also argues that the court ought to construe the defendants' motion as a motion to strike because the defendants' motion challenges the legal sufficiency of the plaintiff's complaint.   It is not accompanied by any affidavits or exhibits, nor does it cite any authority for the arguments presented.   The defendants filed a memorandum in reply on July 12, 2013.   It is accompanied by additional excerpts of the plaintiff's deposition.   The court heard argument on the short calendar on July 15, 2013.

II ANALYSIS

A. Procedural Issue Motion for Summary Judgment versus Motion to Strike

As a threshold inquiry, the court must first address the plaintiff's argument that the defendant's motion must be treated as a motion to strike.   “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.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).

“In contrast, [a] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court ․ We take the facts to be those alleged in the complaint ․ and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.   In doing so, moreover, we read the allegations broadly, rather than narrowly.”  (Internal quotation marks omitted.)  Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005).

“In Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 408–09, 279 A.2d 540 (1971), this court suggested that, in light of the similarities between the procedures, the use of a motion for summary judgment [to challenge the legal sufficiency of a complaint] is proper ․ We also have recognized, however, that the use of a motion for summary judgment instead of a motion to strike may be unfair to the nonmoving party because [t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court ․ [while the] granting of a motion to strike allows the plaintiff to replead his or her case.”   (Citations omitted;  internal quotation marks omitted.)  Id., 400–01.

“If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed ․ It is incumbent on a plaintiff to allege some recognizable cause of action in his complaint ․ Thus, failure by the defendants to demur to any portion of the ․ complaint does not prevent them from claiming that the [plaintiff] had no cause of action and that a judgment [in favor of the defendants was] warranted ․ Moreover, this court repeatedly has recognized that the desire for judicial efficiency inherent in the summary judgment procedure would be frustrated if parties were forced to try a case where there was no real issue to be tried.”  (Citations omitted;  internal quotation marks omitted.)  Id., 401–02.

The plaintiff argues without specific legal analysis that the defendants' motion for summary judgment should be treated by the court as a motion to strike, including that the court must evaluate the motion exclusively in the light of the allegations of the sixth revised complaint.   Nevertheless, the plaintiff does not present any argument as to why it may be unfair for the court to treat the defendants' motion as a motion for summary judgment.   For example, the plaintiff does not argue that any insufficiencies that may be in the complaint could be cured through repleading.¹¹

The defendants do not present a direct substantive response.   They do argue elsewhere, however, that the plaintiff's attempt to file a sixth revised complaint is an attempt to circumvent summary judgment and, further, that the defendants would be entitled to summary judgment regardless of whether or not the court evaluated the motion on the basis of the fifth or sixth complaint.   The defendants contend that the sixth revised complaint is identical to the fifth, excepting seven new paragraphs that were added to count four, and that the sixth revised complaint does not affect the court's analysis as to summary judgment on counts five, seven, eight, nine and ten.

In addition, the defendants point out that the plaintiff's sixth revised complaint is the seventh complaint filed by the plaintiff in this action, the action has been pending since 2009 with substantial discovery occurring since that time, the defendants were entitled to rely upon the fifth complaint in drafting their motion for summary judgment, which was filed pursuant to a scheduling order, and the defendants would be prejudiced if the court permitted the sixth revised complaint.

In Wilton Meadows Ltd. Partnership v. Coratolo, 299 Conn. 819, 832–33, 14 A.3d 982 (2011), the court upheld a trial court's decision not to treat a motion for summary judgment as a motion to strike because the circumstances of the case were such that the insufficiency of the complaint could not have been cured through repleading.   There, the Supreme Court agreed with the trial court that the plaintiff's cause of action, which was wholly statutory in nature, was legally insufficient because the statute did not allow the type of relief the plaintiff sought.

Here, the court does not agree with the plaintiff that the defendants' motion must be treated as a motion to strike.   The plaintiff cannot establish that the opportunity to replead would cure any defects in her complaint.   Importantly, the defendants' motion claims, inter alia:  (1) all the evidence available following discovery conclusively establishes that the defendants are not liable for negligent infliction of emotional distress because distress was not foreseeable under the present facts;  (2) a hospital can never be liable under a cause of action for failure to obtain informed consent when a nonemployee physician is involved; ¹²  and (3) the causes of action as to Vander Vennet and Vander Vennet MD, LLC were commenced after the expiration of the statute of limitations.¹³  Were the court to agree with these positions, no amount of repleading would allow the plaintiff to cure.   The plaintiff's sixth revised complaint, which the plaintiff filed well after the defendants' motion for summary judgment, did not alter any count except count four.   Accordingly, it is irrefutable that repleading would not cure any defect in counts five, seven, eight, nine or ten.

At this late stage, the plaintiff cannot establish that the court's consideration of the defendants' motion as a motion for summary judgment would unfairly prejudice the plaintiff as to count four.   A jury trial in this matter is scheduled to commence on November 26, 2013.   Meanwhile, this action has been pending for over four years and the allegedly tortious conduct of the defendants occurred more than six years ago.   Since that time, substantial discovery has occurred and has been completed, and the plaintiff has had the opportunity to file, and in fact has taken the opportunity to file, six revised complaints, constituting seven total complaints in this action.  “[I]t is clear that the plaintiff has no further facts to allege that would cure the legal defects identified in [the] complaint.”  Larobina v. McDonald, supra, 274 Conn. 403.   Were it the case that the plaintiff did have facts that would allow it to avoid the defects claimed by the defendants, the plaintiff presumably would have discovered and included them by now.   Even if the plaintiff could plead such facts, discovery in this matter has closed and the plaintiff has not suggested that there is good cause for opening discovery and continuing the trial date.   Thus, the present circumstances do not support the conclusion that the plaintiff would be unfairly prejudiced by considering the motion as a motion for summary judgment.   The plaintiff has been afforded every opportunity to plead legally sufficient causes of action against the defendants.

Furthermore, under the present facts, it is clear that the defendants would be prejudiced and the interest of judicial efficiency would not be served were the court to treat the defendants' motion as a motion to strike.   The defendants filed their motion for summary judgment pursuant to the scheduling order of the court.   In doing so, they were entitled to rely upon the facts as pleaded in the then-operative fifth revised complaint, and were further entitled to presume that the case would proceed in accordance with the scheduling order.   The plaintiff responded to the defendants' motion not by claiming that the defendants failed to meet their burden on summary judgment or that there was a factual dispute but, rather, by filing yet another revised complaint and contending that this new complaint pleaded a legally sufficient cause of action.   In doing so, the plaintiff entirely ignored the evidence submitted by the defendant, instead responding to the defendants' arguments by relying upon the allegations of the sixth revised complaint, which partly come in contradiction to the excerpts of the plaintiff's deposition that are before the court and which the court has already concluded is not the operative complaint for the purposes of this motion.   Further, the defendant did not have the benefit of viewing this version of the complaint before it filed its motion for summary judgment, which was filed pursuant to a scheduling order.   This is a case where “the desire for judicial efficiency inherent in the summary judgment procedure would be frustrated if parties were forced to try a case where there was no real issue to be tried.”  Larobina v. McDonald, supra, 274 Conn. 401.   Therefore, the court will therefore consider the defendants' motion as a motion for summary judgment.

B. The Defendants' Substantive Arguments

“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 ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual 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, 11, 938 A.2d 576 (2008).

1. Count Four:  Negligent Infliction of Emotional Distress v. Griffin Hospital

The defendants first argue, broadly, that they are entitled to judgment as to count four first, because Griffin Hospital owed no duty to prevent Allen from seeing the plaintiff and second, because count four sounds in medical malpractice and the plaintiff has not noticed an expert witness despite the fact that discovery has closed.  “The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Contained within the first element, duty, there are two distinct considerations ․ First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty ․ The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand ․ If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant ․” Sic v. Nunan, 307 Conn. 399, 406–07, 54 A.3d 553 (2012).

“Our Supreme Court has stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case ․ In claims of negligent infliction of emotional distress, the narrower inquiry as to foreseeability is whether the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm ․ This condition differs from the standard foreseeability of the risk of harm requirement for negligence liability ․ in that it focuses more precisely upon the nature of the harm to be anticipated as a prerequisite to recovery ․” (Citation omitted;  internal quotation marks omitted.)  Di Teresi v. Stamford Health System, Inc., 142 Conn.App. 72, 79–80, 63 A.3d 1011 (2013).

Thus, in the particular context of negligent infliction of emotional distress, the element of duty turns upon whether a plaintiff can plead and prove:  “(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant's conduct was the cause of the plaintiff's distress.”  Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003);  see also Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345–46, 398 A.2d 1180 (1978).   Evidence is placed on the forseeability element of a negligent infliction of emotional distress claim because “the etiology of emotional disturbance is not as readily apparent as that of a broken bone following an automobile accident [and] recognition of a cause of action for such an injury when not related to any particular trauma may inundate judicial resources with a flood of relatively trivial claims ․ and that liability may be imposed for highly remote consequences of a negligent act.”  Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 447 n.15 (2001).

The defendants present three distinct arguments in support of their contention that they did not owe the plaintiff a duty to keep Allen from seeing her.   First, they argue that the hospital's alleged failure to protect the plaintiff from contact with Allen, when the plaintiff had not taken any action herself to terminate her relationship with him, did not create an unreasonable risk of emotional distress.   In support of this argument they state that no conduct of Griffin Hospital created a risk of emotional distress because all of the allegedly distressing conduct in the plaintiff's claims was committed by Allen and because any distress the plaintiff did suffer was not reasonable in light of the fact that the plaintiff had not terminated her relationship with Allen.   In response, the plaintiff argues that she has pleaded sufficiently the elements of a cause of action for negligent infliction of emotional distress in her sixth revised complaint.¹⁴  The plaintiff reasons that, at the time of the alleged conduct, she was bedridden, depressed, extremely fragile and weak, and thought she was dying.   She argues that it was extreme for the hospital to continue to allow Allen to see her when it knew that she was in such a state and no longer wanted to be treated by him.   The plaintiff points specifically to her efforts to attempt to sever ties with Allen via Griffin Hospital staff by informing the staff through her mother that she no longer desired to be treated by Allen.   She asserts that this evidence establishes that the hospital's conduct in failing to prevent Allen from seeing the plaintiff created an unreasonable risk of emotional distress.

Second, the defendants argue that because the plaintiff had not terminated her relationship with Allen, it was not foreseeable to Griffin Hospital that a failure to prevent Allen from seeing the plaintiff would cause emotional distress.   In support of this argument, the defendants contend that the plaintiff did no more than express concerns about Allen to unidentified hospital staff and that, under these circumstances, emotional distress was not a foreseeable result of the hospital's failure to prevent Allen from seeing the plaintiff.¹⁵  In response to this argument, the plaintiff contends that Griffin Hospital should have foreseen that its conduct in not preventing Allen from seeing the plaintiff could cause emotional distress because the hospital should have been aware of the heightened emotional distress that surgical patients undergo.   The plaintiff also argues that it is foreseeable that failing to prevent a doctor from attempting to bribe a patient with gifts after that doctor had injured the patient would cause emotional distress.¹⁶

Third, the defendants argue that any distress Griffin Hospital may have caused could not have resulted in illness or bodily harm.   The defendants contend that the allegations of the complaint state only that the plaintiff became anxious and upset at an unspecified time following the January 3, 2007 surgery but that the plaintiff does not allege that Allen actually made physical contact with the plaintiff after she no longer desired to see him or that the distress she suffered could have caused bodily harm.   In response, the plaintiff argues that she did allege emotional distress of a type that might lead to illness or bodily harm because she alleged that the anxiety she suffered manifested physically in the form of nightmares, inability to concentrate, depression and anxiety.

The undisputed evidence submitted by the defendants establishes that sometime following the January 3, 2007 surgery, the plaintiff, through her mother, expressed concerns to either Soto or other unidentified Griffin Hospital staff about her treatment by Allen, and informed them that she no longer wanted to be treated by Allen.   Neither the plaintiff nor any members of her family, however, expressed any of the plaintiff's concerns directly to Allen, and the only indication the plaintiff ever gave to Allen of her desire not to see him came in the form of turning her head away from him whenever he entered her room.   Similarly, neither the plaintiff nor any member of her family made any other attempts to directly terminate her doctor-patient relationship with Allen.   The record also does not reveal whether the hospital took any direct efforts to keep Allen away.   The one instance during which the nurse, “Maria,” asked Allen to leave is at best inconclusive because it does not reveal the rationale behind the request.

Based upon the foregoing, it was not foreseeable to the hospital that a failure to prevent Allen from having contact with the plaintiff would cause her emotional distress.   The plaintiff's own deposition testimony indicates that the plaintiff did not object when Allen continued to visit her approximately five additional times following the January 3, 2007 surgery, doing no more than turning away from him whenever he visited.   Meanwhile, the hospital never took definitive action to keep Allen away.   On these facts, it was not foreseeable to the hospital that a failure to keep Allen away from the plaintiff presented an unreasonable risk of causing the plaintiff emotional distress.  “[D]ue care does not require that one guard against eventualities which are at best too remote to be reasonably foreseeable ․ Due care is always predicated upon the existing circumstances.”  (Internal quotation marks omitted.)  Jarmie v. Troncale, 306 Conn. 578, 595, 50 A.3d 802 (2012).   For this same reason, any risk of distress that may have been foreseeable was not an unreasonable risk, and did not present a risk of illness or bodily harm.   The court accepts that the plaintiff was understandably upset about the poor surgical result she claims to have experienced under Dr. Allen's care and the necessity for subsequent surgical repair procedures.   Nonetheless, the court's test for foreseeability requires that “the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants ․ [i]f the fear were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress, and therefore, they would not be liable.”  Barrett v. Danbury Hospital, 232 Conn. 242, 261–62 (1995).   The Supreme Court in Barrett, supra, relied on its earlier analysis in Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 398 A.2d 1180 (1978).   In that case the Supreme Court concluded that a plaintiff may recover for emotional distress if “the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.”  Id., 345.   Applying the Montinieri test to the plaintiff's version of the facts, they are too remote and attenuated to provide a basis for liability for a claim of infliction of emotional distress as to Griffin Hospital.

“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 judgment as a matter of law.”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318 (2006).   A “genuine issue” has been described as a “triable,” “substantial” or “real” issue of fact ․ one which can be maintained by substantial evidence.”  (Internal quotation marks omitted.)  United Oil Co. v. Urban Redev.   Comm'n., 158 Conn. 364, 378 (1969).   A “material fact” is one which “will make a difference in the result of the case.”  (Internal quotation marks omitted.)  Id. at 379.   Finally, “[issue of fact” encompasses evidentiary facts in issue as well as “questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  Id. “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).

Applying the above principles to the facts of this case the court concludes that the defendant has met its burden of showing that there is no material fact at issue.   It therefore, becomes incumbent upon the plaintiff to bring forth evidence establishing a genuine dispute of material fact.   The plaintiff has failed to do so for two reasons.   First, the plaintiff has not presented any evidentiary showing that would establish a genuine dispute of material fact.   Instead, she relies exclusively upon the allegations of her sixth complaint where she claims that she was “assured” by hospital staff that Allen would not be permitted to see her.   But the plaintiff has presented no evidentiary showing, not even an affidavit, to support her assertions, and mere assertions of fact are insufficient to meet a party's burden in establishing a genuine dispute of material fact once the movant has established a lack thereof.   Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11.

Second, here it is undisputed that Allen was the plaintiff's private doctor, not a hospital employee.   Plaintiff's Deposition, pp. 50, 132.   Accordingly, the plaintiff essentially asks this court to find that a hospital owes a patient an independent duty to prevent that patient's own private doctor from contacting him or her whenever the hospital comes to possess information that the patient may desire to terminate her doctor-patient relationship with that doctor, whether or not the plaintiff has yet to independently and affirmatively terminate that relationship.   Were the court to agree with this position, it would amount to a finding that a hospital bears an independent duty to interfere with an existing doctor-patient relationship by excluding the doctor from the patient's presence before the plaintiff had taken any action of his or her own.   In the absence of an actual termination of the relationship by the patient, such interference is not warranted, especially in light of the recognition by the law that the doctor-patient relationship is entitled to protection.   See, e.g., Jarmie v. Troncale, supra, 306 Conn. 578 (declining to expand doctor's duty to protect third parties, in part out of recognition that such a duty interferes with doctor-patient relationship);  Deed v. Walgreen Co., Superior Court, judicial district of Hartford, Docket No. CV–03–0823651–S (November 15, 2004, Lavine, J.) (38 Conn. L. Rptr. 311) (examining whether pharmacists owed independent duty to review propriety of prescriptions would interfere with doctor-patient relationship;  concluding as a general rule that such a duty did not exist);  Sherwood–Armour v. Danbury Hospital, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X02–CV–96–0163786–S (October 30, 2003, Schuman, J.) (35 Conn. L. Rptr. 659) (hospital did not owe independent duty to obtain informed consent from patient who had a private doctor because this would, in part, interfere with doctor-patient relationship).   Accordingly, the plaintiff's arguments are unavailing and the defendants are entitled to judgment as a matter of law with respect to count four.¹⁷

2. Count Five:  Failure to Obtain Informed Consent v. Griffin Hospital

The defendants argue that judgment is proper as to count five because a cause of action for a failure to obtain informed consent may only be maintained against the offending doctor, not against a hospital.   The plaintiff did not offer a substantive response to this argument.

“The informed consent doctrine derives from the principle that [e]very human being of adult years and sound mind has a right to determine what shall be done with his own body;  and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages ․ Informed consent requires a physician to provide the patient with the information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy ․ [The court's] inquiry has been confined to whether the physician has disclosed:  (1) the nature of the procedure, (2) the risks and hazards of the procedure, (3) the alternatives to the procedure, and (4) the anticipated benefits of the procedure ․ Thus, [u]nlike the traditional action of negligence, a claim for lack of informed consent focuses not on the level of skill exercised in the performance of the procedure itself but on the adequacy of the explanation given by the physician in obtaining the patient's consent.”  (Citations omitted;  internal quotation marks omitted.)  Sherwood v. Danbury Hospital, 278 Conn. 163, 180, 896 A.2d 777 (2006).

A hospital “has [no] ․ duty with respect to obtaining a patient's informed consent for a surgical procedure to be performed by a nonemployee physician ․” Petriello v. Kalman, 215 Conn. 377, 384, 576 A.2d 474 (1990).  “Under Petriello ․ it is solely the responsibility of the nonemployee treating physician, and not the duty of the hospital, to inform the patient of the risks and benefits of, and alternatives to, a proposed medical procedure, and to obtain the patient's informed consent before performing any such procedure.   Indeed, nearly every jurisdiction that has considered this issue has arrived at the same conclusion.”  Sherwood v. Danbury Hospital, supra, 278 Conn. 185–86.

The evidentiary record before the court reveals that, despite the plaintiff's allegation in her complaint that Allen was a member of Griffin Hospital's staff, in reality Allen was in private practice and was the plaintiff's private doctor.   Plaintiff's Deposition, pp. 50, 132.   Accordingly, under Petriello and Sherwood, the hospital cannot be liable for a failure on the part of Allen, a nonemployee physician, to obtain the plaintiff's informed consent prior to the January 3, 2007 myomectomy.   The plaintiff does not refute this point.   Accordingly, judgment in favor of the defendants is granted as to count five.

3. Counts Seven Through Ten:  The Statute of Limitations Pursuant to § 52–584

The defendants argue that they are entitled to judgment as to counts seven through ten, all of the counts against Vander Vennet and Vander Vennet MD, LLC (Vander Vennet),¹⁸ because the applicable statute of limitations had expired before the plaintiff commenced the action against either of these two defendants.   More specifically, the defendants contend that § 52–584 provides a two-year statute of limitations for medical malpractice actions, which period is subject to the automatic ninety-day extension provided by § 52–190a.   Because Vander Vennet was involved only in the January 3, 2007 myomectomy, the defendants reason that, at a maximum, and allowing for the ninety-day extension that was granted to the plaintiff on December 15, 2008, the plaintiff was required to serve Vander Vennet no later than April 3, 2009.   The return of service indicates that Vander Vennet was not served until April 17, 2009, and, accordingly, the statute of limitations bars the action against him.

In response, the plaintiff argues that § 52–584 contains both a repose period, which provides an absolute maximum of three years in which to make service from the date on which the negligent conduct occurs, and a limitations period.   Under the repose period, including the ninety-day extension, the plaintiff reasons that she had until April 3, 2010 to commence the action against Vander Vennet.   The plaintiff contends further that even if the limitations period were to apply, the relevant date is the date of discovery of the injury, not the date of the injury itself.   The plaintiff contends that, here, the discovery date is March 19, 2009, because this is the date on which the plaintiff “discovered” the injury since this is the date on which the plaintiff finally obtained an expert's report detailing the medical negligence that had allegedly occurred.   Thus, the plaintiff calculates, when the ninety-day extension is taken into account, the plaintiff had until June 17, 2011 to commence an action against Vander Vennet.   In the alternative, the plaintiff argues that the date of discovery may be calculated at the earliest as January 31, 2007, because this is the date on which the plaintiff was discharged from Griffin Hospital.   This date, including a ninety-day extension, yields a maximum service date of May 1, 2007.

In reply, the defendants argue that the Plaintiff testified at her deposition that she instructed her mother to begin searching for an attorney immediately after the January 6, 2007 surgery.   Accordingly, the defendants reason, at best the plaintiff can claim January 6 as the date of discovery, which would yield a maximum service date, including a ninety-day extension, of April 6, 2009.

Section 52–584 provides, in pertinent part:  “No action to recover damages for injury to the person ․ 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 ․” The parties do not dispute that § 52–584 provides the applicable statute of limitations.  Section 52–190a(b) provides further:  “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.”

“It is well established 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 [reasonable] care, could not reasonably have discovered the nature of the injuries within that time period.”  (Internal quotation marks omitted.)  Neuhaus v. DeCholnoky.   280 Conn. 190, 201, 905 A.2d 1135 (2006).   Consequently, pursuant to the three-year repose provision of § 52–584, a plaintiff has a maximum of three years from the date on which the negligence occurred to commence a cause of action whether or not the plaintiff discovered the cause of action.   In this case, the allegedly negligent myomectomy occurred on January 3, 2007, meaning that the plaintiff was required to commence her action at the latest by January 3, 2010.   Because the plaintiff served Vander Vennet prior to this date, the repose period is not in issue.

Section 52–584 also provides, however, a limitations period of two years from the date of an injury to commence a cause of action.  “[A]s used in § 52–584, the term ‘injury’ is synonymous with ‘legal injury’ or ‘actionable harm.’  ‘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 ․ 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.’   “ (Citations omitted;  internal quotation marks omitted.)  Tarnowski v. Socci, 271 Conn. 284, 288, 856 A.2d 408 (2004).   Accordingly, under the limitations period, the plaintiff was required to commence her cause of action no later than two years from the date of discovery—that is to say, the date on which she came to possess knowledge of facts that would have put her on notice of her injury—to commence her cause of action.

At the outset, the court notes that, although “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”;  Tarnowski v. Socci, supra, 271 Conn. 288;  the facts in the present case are not in dispute because the plaintiff has not attempted to submit any evidence to support her opposition to the defendants' motion.   The undisputed evidence submitted by the defendant, on the other hand, establishes that the plaintiff began suspecting that something was wrong on January 6, 2007, after her mother had consulted her chart.   On that same date, the plaintiff's mother, at the plaintiff's request, began seeking the services of an attorney to prosecute a potential claim for medical malpractice.   Accordingly, the undisputed evidentiary record before the court establishes that on January 6, 2007, the plaintiff came to possess knowledge of facts that put her on notice that she had suffered an injury.

Two years from that date is January 6, 2009.   Factoring in the December 15, 2008 ninety-day extension, the plaintiff was required to commence the action against any and all defendants no later than April 6, 2009.   Meanwhile, the marshal's return establishes that Vander Vennet was first served on April 17, 2009, eleven days after the expiration of the relevant limitations period.   The defendants have, therefore, established their entitlement to judgment as a matter of law on counts seven through ten.   As with before, it now becomes incumbent upon the plaintiff to establish a genuine dispute of material fact.

The plaintiff has failed to present any evidence that would contradict either the evidentiary showing of the defendants or the marshal's return.   Further, the plaintiff's calculated “limitations” date of January 17, 2011 is incorrect under the statute.   The plaintiff's position appears to be that because a letter of good faith is required for a medical malpractice action, a plaintiff cannot be said to have “discovered” an action for the purposes of § 52–584 until that plaintiff obtains a letter of good faith that states with certainty that the plaintiff possesses a valid cause of action.   Thus, under the plaintiff's interpretation of § 52–584, she cannot be said to have “discovered” her injury until she after she had received a full expert's report concerning the January 3 and January 6 procedures.

The plaintiff's interpretation of the law is incorrect because discovery for the purposes of a limitations period does not require absolute certainty but, rather, knowledge of facts that would put the plaintiff on notice that she may have a cause of action.  Tarnowski v. Socci, supra, 271 Conn. 288.   Furthermore, “[a] statute of limitation or of repose is designed to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise.”   (Internal quotation marks omitted.)  Id., 296.   Indeed, the foregoing represents the very rationale underlying the existence of a repose period, which “represents a legislative compromise between the public policy of protecting individuals from the uncertainty that could result from unduly protracted time limits for filing legal claims and the public policy favoring the vindication of meritorious claims in the courts.”  Id. Thus, the plaintiff's position is contrary to the purpose underlying the limitation of actions.

In addition, the existence of the ninety-day extension provided by § 52–190a further demonstrates that the plaintiff's interpretation of the law is incorrect.   The extension of the statute of limitations provided by § 52–190a is premised upon the notion that a plaintiff may have discovered medical malpractice and yet been unable to obtain the required letter of good faith prior to the termination of the two-year limitations period provided by § 52–584.   Accordingly, § 52–190a grants a plaintiff an additional ninety days in order to obtain such a letter.   The statute does not purport to extend or alter the traditional date of discovery analysis that would occur under § 52–584.   Were it to do so, a plaintiff could choose to sit on her rights and delay the filing of an action, waiting to do so until it suited her.   Instead, § 52–190a at most provides an additional ninety days on top of the two years provided by § 52–584.   It does not, through its requirement of a good faith letter, demand absolute certainty for the purposes of limitations analysis.¹⁹

Finally, the court rejects the plaintiff's assertion that the earliest date upon which she can be said to have discovered her injury is January 31, 2007, the date on which she was discharged from Griffin Hospital.   The plaintiff provides no evidentiary basis supporting for this conclusion.   For example, the plaintiff does not present facts that would tend to explain why she claims to have first discovered her injury at the moment of her discharge as opposed to January 6, 2007, the date when she underwent surgery to repair the laceration and when she also began seeking the services of an attorney.   The date of injury was the date of the myomectomy surgery, January 3, 2007.   Arguably, the date of discovery of the plaintiff's alleged injury was January 6, 2007, the date of the repair procedure.   January 31, 2007, is simply an arbitrary date lacking any relevance to the plaintiff's claims against these defendants.

For all of the foregoing reasons, the plaintiff has failed to establish a genuine issue of material fact or to demonstrate that judgment as to counts seven through ten is not warranted.

III. CONCLUSION

For the foregoing reasons, the court GRANTS the motion for summary judgment by defendants Griffin Hospital, Scott Vander Vennet, M.D. and Scott Vander Vennet, M.D., LLC in its entirety.

SOMMER, J.

FOOTNOTES

FN1. On May 8, 2009, the plaintiff filed a withdrawal of the action against Southwest Community Health Center, Inc. based upon the discussions of the parties.   No appearance has been filed on behalf of Associates in Family Health PC. The other defendants will be referred to when necessary by name..  FN1. On May 8, 2009, the plaintiff filed a withdrawal of the action against Southwest Community Health Center, Inc. based upon the discussions of the parties.   No appearance has been filed on behalf of Associates in Family Health PC. The other defendants will be referred to when necessary by name.

FN2. The plaintiff filed a sixth revised complaint and request to revise on May 6, 2013, the same day that she filed her substantive opposition to the defendants' motion for summary judgment.   By reply memorandum dated July 12, 2013 and again at oral argument on July 15, 2013, the defendants contended that the fifth revised complaint should be the operative complaint for the purposes of the present motion.   The defendants argued that this case commenced in April of 2009, significant discovery has since occurred, the defendants relied upon the fifth complaint while drafting their motion for summary judgment, their motion for summary judgment was filed pursuant to a scheduling order and the sixth complaint was prejudicial because it was an unwarranted attempt to circumvent summary judgment.   Counsel for the plaintiff did not offer a substantive response.   The court concluded, on the record, that the fifth revised complaint would be treated as the operative complaint for the purposes of the defendants' motion for summary judgment.   The fifth revised complaint is referred to throughout the remainder of this memorandum as “the complaint.”.  FN2. The plaintiff filed a sixth revised complaint and request to revise on May 6, 2013, the same day that she filed her substantive opposition to the defendants' motion for summary judgment.   By reply memorandum dated July 12, 2013 and again at oral argument on July 15, 2013, the defendants contended that the fifth revised complaint should be the operative complaint for the purposes of the present motion.   The defendants argued that this case commenced in April of 2009, significant discovery has since occurred, the defendants relied upon the fifth complaint while drafting their motion for summary judgment, their motion for summary judgment was filed pursuant to a scheduling order and the sixth complaint was prejudicial because it was an unwarranted attempt to circumvent summary judgment.   Counsel for the plaintiff did not offer a substantive response.   The court concluded, on the record, that the fifth revised complaint would be treated as the operative complaint for the purposes of the defendants' motion for summary judgment.   The fifth revised complaint is referred to throughout the remainder of this memorandum as “the complaint.”

FN3. A myomectomy is the “[s]urgical removal of a myoma, especially of the uterus.”   A myoma, also known as a leiomyoma, is “[a] benign grayish-white mass composed mostly of smooth muscle cells ․ the tumor is seen most frequently in the uterus;  may be single or multiple and occur anywhere in the uterine wall ․ Commonly called fibroid ․” Id..  FN3. A myomectomy is the “[s]urgical removal of a myoma, especially of the uterus.”   A myoma, also known as a leiomyoma, is “[a] benign grayish-white mass composed mostly of smooth muscle cells ․ the tumor is seen most frequently in the uterus;  may be single or multiple and occur anywhere in the uterine wall ․ Commonly called fibroid ․” Id.

FN4. The term “bowel” is a “[c]omon name for the intestine.”   Attorney's Illustrated Medical Dictionary (1997)..  FN4. The term “bowel” is a “[c]omon name for the intestine.”   Attorney's Illustrated Medical Dictionary (1997).

FN5. An ileostomy is a procedure whereby an external opening is created in the intestines in order to divert the intestinal contents from its typical path, usually to an external pouch that is attached for the purpose.   See Attorney's Illustrated Medical Dictionary (1997)..  FN5. An ileostomy is a procedure whereby an external opening is created in the intestines in order to divert the intestinal contents from its typical path, usually to an external pouch that is attached for the purpose.   See Attorney's Illustrated Medical Dictionary (1997).

FN6. Leukocytosis is defined as:  “Abnormal increase in the number of white blood cells in the blood.”   Attorney's Illustrated Medical Dictionary (1997)..  FN6. Leukocytosis is defined as:  “Abnormal increase in the number of white blood cells in the blood.”   Attorney's Illustrated Medical Dictionary (1997).

FN7. Counts one, two and three allege against Allen causes of action for negligence, the failure to obtain informed consent, and negligent infliction of emotional distress.   Count six alleges against Associates in Family Health PC a cause of action for negligence.   None of these counts are the subject of the present motion for summary judgment..  FN7. Counts one, two and three allege against Allen causes of action for negligence, the failure to obtain informed consent, and negligent infliction of emotional distress.   Count six alleges against Associates in Family Health PC a cause of action for negligence.   None of these counts are the subject of the present motion for summary judgment.

FN8. Section 52–584 provides, in pertinent part:  “No action to recover damages for injury to the person ․ [caused] 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.”.  FN8. Section 52–584 provides, in pertinent part:  “No action to recover damages for injury to the person ․ [caused] 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.”

FN9. Section 52–190a(b) provides:  “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 [resulting from medical negligence], 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.”.  FN9. Section 52–190a(b) provides:  “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 [resulting from medical negligence], 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.”

FN10. Prior to this filing, the plaintiff had filed a procedural objection to the defendants' motion on March 28, 2013, on the ground that this matter had been set down for trial and the defendants failed to seek the permission of the court to file their motion pursuant to Practice Book § 17–44, which provides, in pertinent part:  “any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial.”   On April 4, 2013, the defendants filed a response in which they argued that their motion had been filed in accordance with a scheduling order that had been entered in this action and which set March 26, 2013, as the deadline for dispositive motions.   Although no judicial determination was made as to whether the defendants' motion is procedurally defective, the plaintiff did proceed to file her substantive opposition on May 6, 2013, and did not argue the existence of a procedural defect at oral argument.   To the extent a ruling on this matter by this court is necessary, the court concludes that the defendant's motion was procedurally proper in that it complied with the scheduling order, which amounted to a prior grant of permission to file the motion..  FN10. Prior to this filing, the plaintiff had filed a procedural objection to the defendants' motion on March 28, 2013, on the ground that this matter had been set down for trial and the defendants failed to seek the permission of the court to file their motion pursuant to Practice Book § 17–44, which provides, in pertinent part:  “any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial.”   On April 4, 2013, the defendants filed a response in which they argued that their motion had been filed in accordance with a scheduling order that had been entered in this action and which set March 26, 2013, as the deadline for dispositive motions.   Although no judicial determination was made as to whether the defendants' motion is procedurally defective, the plaintiff did proceed to file her substantive opposition on May 6, 2013, and did not argue the existence of a procedural defect at oral argument.   To the extent a ruling on this matter by this court is necessary, the court concludes that the defendant's motion was procedurally proper in that it complied with the scheduling order, which amounted to a prior grant of permission to file the motion.

FN11. As previously noted, the plaintiff did, however, filed a sixth revised complaint on the same day as the plaintiff filed her substantive response to the defendants' motion..  FN11. As previously noted, the plaintiff did, however, filed a sixth revised complaint on the same day as the plaintiff filed her substantive response to the defendants' motion.

FN12. It is also significant that the plaintiff has offered no substantive response to the defendants' arguments on count five..  FN12. It is also significant that the plaintiff has offered no substantive response to the defendants' arguments on count five.

FN13. “[O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike.”  (Internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006).   “[T]here are two exceptions to [this rule].   Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitations, would be permitted.”  Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996).  “The first is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question [of] whether the action is barred by the Statute of Limitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer.”   (Internal quotation marks omitted.)  Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993).   The second exception is where “a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right—it is a limitation of the liability itself as created, and not of the remedy alone.”  (Internal quotation marks omitted.)  Id., 241–41.   Although the plaintiff claims that there is a factual dispute as to the whether this action is barred by the statute of limitations, the plaintiff's claim is based exclusively upon her interpretation of the facts pleaded in the complaint and the facts submitted by the defendants.   The plaintiff has not, however, submitted any additional evidence of her own which she claims creates a factual dispute.   Accordingly, were the court to construe the defendants' motion as a motion to strike, the first exception to the rule regarding the statute of limitations would apply because the parties agree as to all the pertinent facts upon which the issue is to be decided..  FN13. “[O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike.”  (Internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006).   “[T]here are two exceptions to [this rule].   Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitations, would be permitted.”  Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996).  “The first is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question [of] whether the action is barred by the Statute of Limitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer.”   (Internal quotation marks omitted.)  Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993).   The second exception is where “a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right—it is a limitation of the liability itself as created, and not of the remedy alone.”  (Internal quotation marks omitted.)  Id., 241–41.   Although the plaintiff claims that there is a factual dispute as to the whether this action is barred by the statute of limitations, the plaintiff's claim is based exclusively upon her interpretation of the facts pleaded in the complaint and the facts submitted by the defendants.   The plaintiff has not, however, submitted any additional evidence of her own which she claims creates a factual dispute.   Accordingly, were the court to construe the defendants' motion as a motion to strike, the first exception to the rule regarding the statute of limitations would apply because the parties agree as to all the pertinent facts upon which the issue is to be decided.

FN14. As previously noted, the court will not evaluate the present motion under the allegations of the sixth revised complaint but, instead, will consider only those of the plaintiff's arguments based upon allegations that also appear in the fifth revised complaint.   The plaintiff does not contest the facts as established by the evidence submitted by the defendants, nor does the plaintiff submit any evidence of her own supporting her opposition to the defendants' motion for summary judgment..  FN14. As previously noted, the court will not evaluate the present motion under the allegations of the sixth revised complaint but, instead, will consider only those of the plaintiff's arguments based upon allegations that also appear in the fifth revised complaint.   The plaintiff does not contest the facts as established by the evidence submitted by the defendants, nor does the plaintiff submit any evidence of her own supporting her opposition to the defendants' motion for summary judgment.

FN15. The defendants also argue that no conduct of the hospital placed the plaintiff at a risk of emotional distress at all..  FN15. The defendants also argue that no conduct of the hospital placed the plaintiff at a risk of emotional distress at all.

FN16. The plaintiff also argues, based upon the allegations of the sixth revised complaint, that the hospital should have foreseen that its conduct would create an unreasonable risk of emotional distress because the plaintiff alleges in the sixth complaint that Allen violated General Statutes § 20–11b, which requires medical professionals to carry malpractice insurance, because he did not have such insurance and, further, the that hospital was aware of this fact.   As previously concluded, the court evaluates the present motion under the allegations of the fifth revised complaint and will not, accordingly, consider allegations that are specific to the sixth revised complaint..  FN16. The plaintiff also argues, based upon the allegations of the sixth revised complaint, that the hospital should have foreseen that its conduct would create an unreasonable risk of emotional distress because the plaintiff alleges in the sixth complaint that Allen violated General Statutes § 20–11b, which requires medical professionals to carry malpractice insurance, because he did not have such insurance and, further, the that hospital was aware of this fact.   As previously concluded, the court evaluates the present motion under the allegations of the fifth revised complaint and will not, accordingly, consider allegations that are specific to the sixth revised complaint.

FN17. The defendants also presented a fourth reason why judgment is appropriate as to count four, namely, that count four sounds in medical malpractice and, accordingly, requires the testimony of an expert.   Because discovery has closed and the plaintiff has not noticed an expert witness who will testify as to count four, they reason, judgment as to that count is proper.   The plaintiff did not offer a substantive response.   The court has already concluded that the defendants have met their burden of establishing the absence of a legal duty under count four and does not, therefore, address this argument..  FN17. The defendants also presented a fourth reason why judgment is appropriate as to count four, namely, that count four sounds in medical malpractice and, accordingly, requires the testimony of an expert.   Because discovery has closed and the plaintiff has not noticed an expert witness who will testify as to count four, they reason, judgment as to that count is proper.   The plaintiff did not offer a substantive response.   The court has already concluded that the defendants have met their burden of establishing the absence of a legal duty under count four and does not, therefore, address this argument.

FN18. The parties each refer to both Vander Vennet and Vander Vennet MD, LLC as “Vander Vennet” collectively.   For this reason, and also because both Vander Vennet and Vander Vennet MD, LLC were both served on the same day, the court refers to them collectively as “Vander Vennet.”.  FN18. The parties each refer to both Vander Vennet and Vander Vennet MD, LLC as “Vander Vennet” collectively.   For this reason, and also because both Vander Vennet and Vander Vennet MD, LLC were both served on the same day, the court refers to them collectively as “Vander Vennet.”

FN19. The plaintiff's calculated date of June 17, 2011, as the termination of the limitations period is incorrect because it ignores her own supporting case law, which provides that the three-year statute of repose is an absolute time-bar to the bringing of an action.   See Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 169, 947 A.2d 291 (2008).   Accordingly, were the court to accept the plaintiff's non-evidentiary assertion that the date of discovery is March 19, 2009, the maximum date on which the statute of repose would run would still be January 3, 2010, three years from the date of the injury, not June 17, 2011..  FN19. The plaintiff's calculated date of June 17, 2011, as the termination of the limitations period is incorrect because it ignores her own supporting case law, which provides that the three-year statute of repose is an absolute time-bar to the bringing of an action.   See Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 169, 947 A.2d 291 (2008).   Accordingly, were the court to accept the plaintiff's non-evidentiary assertion that the date of discovery is March 19, 2009, the maximum date on which the statute of repose would run would still be January 3, 2010, three years from the date of the injury, not June 17, 2011.

Sommer, Mary E., J.