Opinion
No. CV 04 4001359 S
October 5, 2005
RULING ON THE DEFENDANT'S MOTION TO ARGUE
In a Memorandum of Decision dated July 25, 2005, the court granted the defendants' motion for summary judgment as to the plaintiff's postmortem claims and denied the motion as to the plaintiff's ante-mortem claims. Pending before the court is a motion to reargue filed by these defendants, Richard Katz, M.D., and Connecticut Radiology Associates, P.C. The motion to reargue seeks reconsideration of the court's decision denying summary judgment as to the ante-mortem claims.
The motion to reargue is granted, and the court hereby vacates the July 25, 2005 ruling denying the defendant's motion for summary judgment on the plaintiff's ante-mortem claims. The court agrees with the defendant that the court applied General Statutes § 52-594 in a manner that does not provide the more persuasive construction of this statute. See Fenton v. United Technologies, 204 F.Sup.2d 367 (D.Conn. 2002).
General Statutes § 52-584 requires the plaintiff to institute suit "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." As articulated on the record on September 26, 2005, material issues of disputed fact exist as to when the plaintiff, in the exercise of reasonable care, should have discovered the injury for statute of limitations purposes. See generally, Tarnowsky v. Socci, 271 Conn. 284 (2004) (the two-year limitation period of § 52-584 does not begin to run until a plaintiff knows, in the exercise or reasonable care, the identity of the tortfeasor); Lagassey v. State of Connecticut, 268 Conn. 723 (2004) (court could not conclude as a matter of law that the plaintiff, in the exercise for reasonable care, should have discovered actionable harm before she obtained the expert opinion concerning the defendant's alleged negligent treatment); Catz v. Rubenstein, 201 Conn. 39 (1986) (summary judgment is unavailable when issues of fact exist as to when the plaintiff discovered her injury).
According to the facts viewed most favorably to the plaintiff, the plaintiff received a copy of the decedent's October 30, 2001, abdominal x-ray. A review of this x-ray failed to show anything inconsistent with the defendants' report that the x-ray showed no evidence of "free air." However, when the plaintiff subsequently acquired the original x-ray, the plaintiff's expert viewed the original as evidencing free air and indicated that the x-ray was incorrectly read by the defendants to the detriment of the plaintiff's decedent. Although the defendants contend that the plaintiff should have taken action to acquire the original x-ray sooner, a clear issue of fact exists on this issues especially when the copy was seasonably acquired by the plaintiff and it was read as being consistent with the defendants' report. In short, this is not a situation in which the plaintiff failed to do any investigation of the decedent's death until after the limitation period had expired as was the case before the Supreme Court in Merly v. State, 211 Conn. 199 (1989). Merly v. State, supra, which is relied on by the defendants, is distinguishable because on this record, the court cannot conclude as a matter of law that the plaintiff failed to exercise reasonable care in discovering the existence of actionable harm.
Therefore, for the foregoing reasons, the defendant's motion to reargue is granted, and upon further review, the defendant's motion for summary judgment as to the plaintiff's ante-mortem claims is again denied.
So ordered this 27th day of September 2005.
Stevens, J.