Opinion
No. CV-07-5008687-S
May 29, 2009
MEMORANDUM OF DECISION
The defendant has moved for summary judgment on Count Three of the Second Amended Complaint, dated September 8, 2008, on the grounds that it is barred by the applicable statute of limitations.
Facts not in Dispute
On September 9, 2005, the plaintiff received treatment from the defendant, Victor Terranova, D.M.D., at Columbia Dental, and had all teeth, except five teeth in her lower jaw, removed. By September 21, 2005, the plaintiff claims that she began breathing through the left side of her top jaw rather than through her left nostril. On October 31, 2005, when she continued to breathe through her gums, the plaintiff sent a letter of complaint to the peer review committee of the state dental society complaining about her experience with Columbia Dental. On December 21, 2005, the plaintiff saw Dr. Jeffrey Sawyer, an Ear, Nose and Throat specialist. At that time Dr. Sawyer advised the plaintiff that she had chronic sinusitis caused by her dental extractions.
On December 22, 2005, Dr. Saunders, president of the Dental Society Peer Review Association, contacted the plaintiff and informed her that there had been eight complaints against Columbia Dental. The plaintiff explained to Dr. Saunders that she could not breathe and wanted her mouth fixed and Dr. Saunders referred her to Dr. Ansari, an oral surgeon, and recommended that she contact a lawyer to obtain "restitution." The plaintiff met with an attorney on January 20, 2006.
On January 9, 2006, the plaintiff was seen by Dr. Ansari, who confirmed that there was an opening in her sinus and her sinus was infected both of which resulted from her dental extractions. According to the plaintiff, Dr. Ansari specifically told her that the opening should never have been left so long and "it was negligent because now there is so much infection." Plaintiff's Diary entry of January 9, 2006.
On January 25, 2006, Dr. Sawyer performed a sinus endoscopy on the plaintiff to clear any obstruction in the sinus cavity. The plaintiff had a second surgical procedure performed by Dr. Ansari on February 1, 2006.
The plaintiff commenced this malpractice action by service on the defendant of a writ, summons and complaint with a return date of February 20, 2007, which alleged negligence in the extraction of the plaintiff's teeth and in the failure to diagnose an oral antrum defect. The plaintiff filed a Second Amended Complaint dated September 8, 2008, which added a third count. Count Three of that complaint alleged that the defendant, Victor Terranova, failed to obtain the plaintiff's informed consent prior to the extractions by failing to disclose the risk of an oral antral perforation of the sinus cavity wall.
Discussion of Law and Ruling
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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 251-52, 819 A.2d 773 (2003). "A material fact . . . [is] a fact which will make a difference in the result of the case . . . Finally, the scope of our review of the trial court's decision to grant the plaintiff's motion for summary judgment is plenary." (Citation omitted; internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993 (2001). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
Connecticut General Statutes § 52-584, "Limitation of action for injury to person or property caused by negligence, misconduct or malpractice," provides in relevant part:
No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or 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 . . .
"[W]here a patient seeks recovery based upon lack of informed consent, he is bringing a malpractice action as contemplated by § 52-584." Lambert v. Stovell, 205 Conn. 1, 5-6, 529 A.2d 710 (1987).
In Lambert, the defendant performed ankle fusion surgery on the plaintiff on June 1, 1977. The plaintiff was discharged from the hospital on June 10, 1977, and was readmitted on June 28, 1977, after the defendant discovered that the plaintiff had developed an ankle infection. The plaintiff was informed about the infection by the defendant when he was re-hospitalized. During July and August of 1977, the defendant discovered, and told the plaintiff, that there was a non-union at the fusion site. As a result of this disclosure, the plaintiff sought a second opinion on August 23, 1977, from Dr. Howard Rosen, who confirmed the fact that there was an infection in the ankle and a non-union of the joint, both of which would require further treatment. On December 1, 1977, Dr. Rosen performed a surgical procedure to remove the infected bone. Dr. Rosen performed a second procedure on June 6, 1978, in order to expedite fusion of the ankle.
The plaintiff commenced suit against the defendant on March 5, 1980, based upon the doctrine of informed consent, alleging that the defendant had not sufficiently informed him of the material risks and consequences of the original surgical procedure or of the fact that his preoperative x-rays had revealed an essentially normal ankle. The defendant interposed a special defense claiming that the plaintiff's action was barred by the two-year statute of limitations in § 52-584.
Affirming a judgment in favor of the defendant, the Court stated:
Section 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.' (Emphasis added.)" Catz v. Rubenstein, 201 Conn. 39, 43, 513 A.2d 98 (1986), citing Burns v. Hartford Hospital, 192 Conn. 451, 460, 472 A.2d 1257 (1984). "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. Catz v. Rubenstein, supra. "The focus is on the plaintiff's knowledge of facts, rather than on discovery of applicable legal theories." Id., 47.
Lambert v. Stovell, 205 Conn. at 6.
Although he was aware of his infection and the non-union of the bones in August of 1977, the plaintiff in Lambert contended that that knowledge was not sufficient to commence the statutory limitation period, and that the statute should have remained tolled until he discovered all the information the defendant was allegedly obligated to disclose to him. The Court did not agree, stating, "As we stated in Burns v. Hartford Hospital, supra, the statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof. Id. (Emphasis added.) In the context of this case, Lambert held that "actionable harm" occurs in an informed consent case when the plaintiff is aware that he has suffered harm, not when he learns that such harm was a risk about which he should have been informed. Lambert, supra, at 7.
The plaintiff first contacted the Dental Society Peer Review Association on October 13, 2005, because she was breathing out of her gum and wanted her mouth to be fixed. On December 21, 2005 the plaintiff was informed by her Ear, Nose and Throat doctor that she had chronic sinusitis resulting from her dental treatment by the defendant. The plaintiff's own diary acknowledged that her oral surgeon, Dr. Ansari, advised her on January 9, 2006, that it was negligent to leave the opening in her sinus for so long after the defendant's dental extractions. In light of the foregoing undisputed facts, the statute of limitations began to run by January 9, 2006 at the latest. By that time the plaintiff knew that she had a serious infection and opening in her sinus, risks of which she alleges she should have been informed. This knowledge clearly put her on notice of "actionable harm" as of January 9, 2006 and, therefore, the two-year statute of limitations ran out January 9, 2008.
A party's freedom to add new allegations to a complaint is limited by the relation back doctrine. That doctrine provides that "an amendment related back when the original complaint has given the [opposing] party fair notice that the claim is being asserted stemming from a particular transaction or occurrence." Alswanger v. Smego, 257 Conn. 58, 64-65, CT Page 9250 776 A.2d 444 (2001). "A party may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same." Dimmock v. Lawrence Memorial Hospital, Inc., 286 Conn. 789, 798, 945 A.2d 955 (2008).
The courts of this state have refused to allow the relation back of a new cause of action filed after the statute of limitations has run. Keenan v. Yale New Haven Hospital, 167 Conn. 284, 355 A.2d 253 (1974); Alswanger v. Smego, supra, at 66-68; Barrett v. Danbury Hospital, 232 Conn. 242, 642 A.2d 748 (1995).
Both the Supreme and Appellate courts of this state have recognized that a claim for medical malpractice and a claim for failure to obtain informed consent are two separate and distinct causes of action. Williams v. Chameides, 26 Conn.App. 818, 603 A.2d 1211, cert. denied, 221 Conn. 923, 608 A.2d 689 (1992); Hayes v. Camel, 283, 475, 927 A.2d 880 (2007); Sherwood v. Danbury Hospital, 278 Conn. 163, 896 A.2d 777 (2006); Pekera v. Purpora, 80 Conn.App. 685, 836 A.2d 1253 (2003), appeal granted in part on other grounds, 267 Conn. 919, 841 A.2d 1191 (2004), aff'd, 273 Conn. 348, 869 A.2d 1210 (2005). "[A]lthough a malpractice complaint may include claims both for a failure to perform and for failure to inform, the two claims are not identical." Pekera, supra, at 691. "This distinction between a duty to exercise due care in the performance of requisite medical procedures and a duty to exercise due care in informing a patient of medical risks . . . reflects . . . the fundamental difference between the appropriate performance of professional skills and the proper engagement of a patient in decision making about his or her professional care." Id.
In this case the facts alleged in Count Three of the Second Amended Complaint for lack of informed consent are significantly different than the facts alleged in the original complaint, which alleged malpractice in the extraction of her teeth. Count Three states a new cause of action for lack of informed consent which does not relate back to the date of the filing of the original complaint. Since the Third Count was filed on September 8, 2008, well after the applicable two-year statute of limitations had run, summary judgment is hereby entered on that count.