Opinion
No. HHD-CV-02-0814180-S
February 28, 2006
MEMORANDUM OF DECISION
On February 6, 2002, the plaintiff, Marvin Plourde, individually and as the temporary administrator for the estate of Nadine Plourde, filed this wrongful death action, stemming from medical malpractice, against the following defendants: the Hartford Hospital, Jeffery Hirst, M.D., the Hartford Cardiac Laboratory, Cardiac Care Associates, P.C., David Salm, M.D., Prohealth Physicians, P.C. (Prohealth) and Ronald Pariser, M.D. In the complaint, the plaintiffs allege that the negligent care provided by these defendants resulted in serious injuries to and the subsequent death of his wife, Nadine Plourde, on November 2, 1999. On October 12, 2001, three weeks before the statutory limitations period of two years expired, the plaintiffs filed a petition for an automatic ninety-day extension of the statute of limitations, which was granted.
On September 29, 2005, Salm and Prohealth moved for summary judgment on counts six, seven, and eight of the plaintiffs' complaint. The following grounds are asserted therein: (1) the plaintiffs did not bring suit within the two-year statute of limitations as prescribed by General Statutes § 52-555, (2) the plaintiffs' petition to extend the statute of limitations pursuant to General Statutes § 52-190a(b) did not request an extension of time for the cause of action that was subsequently alleged in the complaint, (3) assuming that § 52-190a(b) effectively extended the statute of limitations, it violates the due process clause in the United States constitution and, therefore, is unconstitutional and (4) count eight, the claim for loss of consortium, is legally insufficient. The defendants filed a memorandum of law in support of their motion for summary judgment and attached a copy of the plaintiffs' § 52-190a(b) petition to the clerk requesting an extension. On November 17, 2005, the plaintiffs filed a memorandum of law in opposition to the summary judgment motion.
General Statues § 52-555 provides: "In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of."
General Statues § 52-190a(b) provides: "Upon petition to the clerk of the court where the action will be filed 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."
The fourteenth amendment to the United States constitution provides in relevant part: "No State shall . . . deprive any person of life, liberty, or property, without due process of law . . ."
"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.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005).
In reaching a decision on a motion for summary judgment, "[t]he 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." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46, 881 A.2d 194 (2005).
As an initial matter, the defendants have challenged the wording of the § 52-190a(b) petition, pointing out that the prospective plaintiffs' names, Marvin Plourde and Nadine Plourde, are erroneously transposed in the body of the petition. Based on this transcription error, the defendants maintain that the petition is flawed and should not have been granted by the clerk because "it did not request an extension of time for the cause of action that was subsequently alleged in the complaint." No case law or practice book provision could be found, however, delineating the precise details or formatting of a § 52-190a(b) petition. The heading of the petition lists both Nadine Plourde and Marvin Plourde as the plaintiffs and Prohealth and Salm, among others, as the defendants. The petition also references § 52-190a(b). That section then references § 52-190a(a), which, in turn, references the wrongful death cause of action. Notwithstanding the transcription error in the body of the text, the petition submitted by the plaintiffs is adequate to show that the plaintiffs requested an extension pursuant to § 52-190a(b) against the defendants. Until such time as rules or statutes require more, this court does not consider a transcription defect as fatal to the petition. See Barrett v. Montesano, 269 Conn. 787, 849 A.2d 839 (2004) (Scrivener's error on a § 52-190a(b) petition did not defeat the plaintiffs' claim.)
The petition provided that it was "regarding the course of treatment given to Marvin Plourde and affecting Nadine Plourde" instead of referencing the treatment provided to Nadine Plourde and affecting Marvin Plourde.
We now turn to the crux of the defendants' summary judgment argument, that the automatic ninety-day extension in § 52-190a(b) deprives them of their vested property interest in the two-year statutory time period set forth in § 52-555, violating their procedural due process rights. The plaintiffs counter that § 52-190a(b) adds an additional ninety days to the defendants' property right contained in § 52-555, to provide for the right to be sued within two years and ninety days, and that upon the filing of the civil action, the defendants receive adequate notice that comports with the requirements of due process.
"[A] party who challenges the constitutionality of a statute bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute's constitutionality . . . [T]he defendant must show that its effect or impact on him adversely affects a constitutionally protected right which he has . . . Finally, [w]hile the courts may declare a statute to be unconstitutional, our power to do this should be exercised with caution, and in no doubtful case." (Citations omitted; internal quotation marks omitted.) Giordano v. Giordano, 39 Conn.App. 183, 188-89, 664 A.2d 1136 (1995).
"The United States Supreme Court analyzes claims of procedural due process in accordance with the three part test set forth in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The Connecticut Supreme Court uses the same test . . . That test requires a consideration of `the private interest that will be affected by the official action,' `the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards,' and `the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.'" (Citation omitted; internal quotation marks omitted.) Giordano v. Giordano, supra, 39 Conn.App. 194.
Section 52-190a, the statute at issue in the present case, was enacted by the legislature in 1986 as a measure of tort reform, resulting in a benefit to prospective medical malpractice defendants. Its purpose "is to discourage the filing of baseless lawsuits against healthcare providers." (Internal quotation marks omitted.) Gabrielle v. Hospital of St. Raphael, 33 Conn.App. 378, 383, 635 A.2d 1232, cert. denied, 228 Conn. 928, CT Page 3730 640 A.2d 115 (1994). It requires prospective plaintiffs to conduct a reasonable inquiry on the issue of negligence prior to bringing medical malpractice actions against health care providers. General Statutes § 52-190a(a). Verification of this investigation must be in the form of a "good faith certificate" attached to the complaint or other initial proceeding. General Statutes § 52-190a(a). "The purpose of the certificate is to evidence a plaintiff's good faith derived from the precomplaint inquiry. It serves as an assurance to the defendant that a plaintiff has in fact made a reasonable precomplaint inquiry giving him a good faith belief in the defendant's negligence." LeConche v. Elligers, 215 Conn. 701, 711, 579 A.2d 1 (1990).
The pre-filing inquiry in § 52-190a burdens medical malpractice claimants in a way that ordinary personal injury and wrongful death claimants are not. These claimants, however, are provided with a setoff for this burden in the ninety-day extension of the two-year statute of limitations. See General Statutes § 52-190a(b). "[The] additional burden to conduct a reasonable inquiry necessitates the additional ninety days in which to do so . . ." (Internal quotation marks omitted.) Barrett v. Montesano, supra, 269 Conn. 796. It is this statutorily mandated procedural hurdle that prospective plaintiffs must adhere to that the defendants have challenged as unconstitutional, denying the defendants of a constitutional right to notice and an opportunity to be heard.
The defendants argue that they have a "vested property right" in the limitations period provided in § 52-555 that is divested by § 52-190a(b) without an opportunity to be heard prior to this divestment. In response, the plaintiffs maintain that the defendants' "property right" provided in § 52-555 must to be read in conjunction with § 52-190a(b) to create a statute of limitations of two years and ninety days when the plaintiff files a certificate of good faith in accordance with § 52-190a.
Two recent superior court decisions, Desimini v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV 05 4003250 (January 12, 2006, Domnarski, J.) and Sneath v. Roche, Superior Court, judicial district of Hartford, Docket No. CV 98 0585453 (March 2, 2004, Hennessey, J.T.R.) ( 36 Conn. L. Rptr. 691), have addressed the issue of whether a defendant has a vested property right in § 52-555 and whether the ex parte automatic ninety-day extension in § 52-190a(b) is a constitutional violation of a defendant's due process right. Both cases determined that a defendant's due process rights were not violated and that adequate notice had been provided to the defendant.
In Desimini, the defendant hospital specifically argued that "the ex parte procedure in § 52-190a(b), by extending the statute of limitations by 90 days, deprives a defendant of its vested property right to an exemption, if suit is not brought within two years" and that subsection "does not provide a mechanism for notice to a defendant of the filing of a petition for an automatic 90-day extension." The court therein first noted that "Subsection (a) of § 52-190a . . . provides that it is applicable to a `civil action . . . filed to recover damages resulting from . . . wrongful death . . . in which it is alleged that such . . . death resulted from the negligence of a health care provider . . .'" The court then relied on an earlier Supreme Court case, Hillier v. East Hartford, 167 Conn. 100, 109, 355 A.2d 1 (1974), for the proposition that the "[d]efendant's right of defense . . . became fixed in present enjoyment and available to the defendant under the statute in effect at the time of the injury . . ." In dealing with an extension statute such as the accidental failure of suit statute, the trial court acknowledged that "our Supreme Court has stated,"' the time limitation in the wrongful death statute must be read together with the extension statute.'" Isaac v. Mount Sinai Hospital, 210 Conn. 721, 728, 557 A.2d 116 (1989). Based on the language in Ecker v. West Hartford, 205 Conn. 219, 530 A.2d 1056 (1987) that the cause of action in wrongful death did not exist at common law and therefore the time limitation therein cannot be waived or extended, the Desimini court stated that the Isaac case clarified that statement. "Our statement in Ecker . . . that where a time limitation is contained in a statute creating a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter, cannot be considered in isolation." Isaac v. Mount Sinai Hospital, supra, 731.
The court in Desimini concluded that "the time limitation provided for in § 52-555 must be read in conjunction with § 52-190a(b)." "`Section 52-190a(b) grants an automatic ninety-day extension of the statute, making it clear that the ninety days is in addition to other tolling periods.' Girard v. Weiss, 43 Conn.App. 397, 418, 682 A.2d 107, cert. denied, 239 Conn. 946, 986 A.2d 121 (1996). The two-year statute of limitations in § 52-555 is not determinative, it is automatically extended by 90 days by the utilization of § 52-190a(b). Effectively, the defendant has property rights, not in a two-year limitation period, but in a statute of limitations of two years and 90 days. Since the defendant . . . does not have a vested property right in a two-year statute of limitations, the automatic extension in § 52-190a(b) does not give rise to a violation of the defendant's constitutional rights." Desimini v. Bristol Hospital, Inc., supra, Superior Court, Docket No. CV 05 4003250.
In the other case, Sneath v. Roche, supra, 36 Conn. L. Rptr. 691, which also addressed the due process issue and § 52-190a(b), the court found that although the automatic 90-day extension to the limitation provided by § 52-190a(b) is ex parte, it did not unconstitutionally deprive a defendant of a vested property right. The court therein looked at the language of the statute [§ 52-190a], its legislative history and the circumstances surrounding its enactment as well as the legislative policy it was designed to implement and stated that "[i]n light of the language and purpose of § 52-190a, the legislature intended for the ninety-day extension to apply in all actions involving personal injury or wrongful death caused by a healthcare provider." Id., 693. The court further stated that the "effect of the granting of such an extension is simply to extend by three months . . . the time within which a potential plaintiff must commence . . . [his or her] lawsuit." (Internal quotation marks omitted.) Id. In response to the defendant's arguments that, § 52-190a(b) grants a plaintiff the statutory authority to deprive a defendant of its substantive right to timely notice and freedom from stale claims under the wrongful death statute, § 52-555, and results in a constitutional deprivation of the defendant's vested property interest without due process, the court in Sneath held that the defendant's due process claim was without merit. Id. The court therein discussed the constitutional due process clauses and their requirement that any one who is subject to a significant deprivation of liberty or property must first be accorded adequate notice and a meaningful opportunity to be heard. Id. "[A]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity [to be heard]." Id. In Sneath, the court held that adequate notice was received by the defendants from the filing of the plaintiff's wrongful death civil action, which because it notified them of the action and provided them with the opportunity to be heard, comports with due process. Id.
In addition to these trial court cases, the Connecticut Supreme Court in Barrett v. Montesano, 269 Conn. 787, 849 A.2d 839 (2004) construed § 52-190a and stated that it applied to both a statute of limitations and a statute of repose. The court reiterated that the purpose of subsection (a) is to inhibit a plaintiff from bringing an inadequately investigated cause of action, whether in tort or in contract, claiming negligence, which consequently benefits a defendant healthcare provider. Id., 796. In the same vein, however, the court stated that it is this "additional burden [imposed upon the plaintiff] to conduct a reasonable inquiry [that] necessitates the additional ninety days in which to do so, which is essential to ameliorate the `harsh consequences of the occurrence rule.'" Id.
This court, in interpreting statutes § 52-555 and § 52-190a(b), believes that the legislature intended § 52-555 to be modified by § 52-190a(b). The defendants argue, however, that the legislature did not have authority to modify § 52-555 by the mechanism provided for in § 52-190a(b). The defendants herein urge this court to "hold that the Connecticut Supreme Court's decisions in Hillier [ Hillier v. East Hartford, 167 Conn. 100, 355 A.2d 1 (1974)] and Worsham [ Worsham v. Greifenberger, 242 Conn. 432, 441, 698 A.2d 867 (1997)] and the United States Supreme Court's decision in Loudermill [ Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)] compel the conclusion that the automatic ex parte procedure [applied] to the present case would deprive [the defendants] of a vested property right without prior notice or a hearing."
The Desimini court aptly illustrated the distinguishing factors between the Hillier case and the present constitutional claim. "In Hillier the plaintiff brought an action under [General Statutes] § 13a-149 against a municipality to recover for injuries sustained as a result of a fall on an icy sidewalk. The plaintiff did not give notice of her injury to the defendant within 30 days as required by the statute. In fact, the defendant municipality did not receive notice until more than a year after the injury, which is also the approximate time when the plaintiff brought a lawsuit seeking damages for her injuries. After suit was brought, the legislature passed a special act which validated the late notice given to the municipality. The court found that the defendant's right of defense was fixed under the statute in effect at the time of injury and that the later special act deprived the defendant of its right in violation of the state and federal constitutions." Desimini v. Bristol Hospital, Inc., supra, Superior Court, Docket No. CV 05 4003250. Hillier involved the retroactive modification of a notice requirement. In the present case, there is no retroactivity issue that implicates the due process clause.
Worsham, too, is inapposite. Therein, the plaintiff was injured in an automobile accident. Worsham v. Greifenberger, supra, 242 Conn. 435. Worsham collected benefits from his workers' compensation policy. Id., 435. Worsham's employer, in turn, filed suit against the tortfeasor and sent Worsham a letter to this effect. Id., 435. The letter referenced the suit filed by Worsham's employer and the applicable statutes, but did not explicitly explain to Worsham his rights with regard to maintaining an action against the tortfeasor. Id., 435. Subsequently, Worsham filed an action against the tortfeasor, but the action was dismissed on summary judgment due to timeliness. Id., 435. Pursuant to General Statues § 31-293, Worsham could have intervened in the action between his employer and the tortfeasor if he did so within thirty days of the filing of the initial suit. Id., 436. Worsham then argued that the letter provided by his employer did not adequately apprise him of the timing issues relevant to his claim. Id., 435. Recognizing that the statute permanently deprived Worsham of his right to sue in conjunction with the brief duration within which Worsham had to preserve his rights, the court held that the notice to Worsham was "constitutionally insufficient." Worsham v. Greifenberger, supra, 242 Conn. 441.
In Worsham, the plaintiff could have taken action to preserve his rights, but was not provided with sufficient notice on how to do so. In the present case, there is no action that the defendants could have taken to "preserve" their rights, because under § 52-190a(b), the defendants' property interests were not being taken away. Even if notice was provided to the defendants that the clerk was granting the prospective plaintiffs' petition to extend the limitations period, this extension is mandatory, not discretionary, and therefore, the defendants could not prompt a change in the clerk's actions.
Finally, the holding in Loudermill is distinguishable from the present case. In Loudermill, the United States Supreme Court held that prior to terminating a public employee who could only be fired "for cause," the employee must be provided with "oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Cleveland Board of Education v. Loudermill, supra, 470 U.S. 546. In reaching this conclusion, the court emphasized the severity of depriving an individual of his livelihood as a property right as well as the value of a hearing on the typically fact-intensive inquiry on what constitutes "for cause." Id., 543. In this case, the defendants have not elaborated on how their interests in a right not to be sued is akin to a person losing his livelihood such that the defendants must be afforded a pre-petition hearing. See Cleveland Board of Education v. Loudermill, supra, 470 U.S. 532. Although this court has previously stated that there has been no actual deprivation of property in the present case, even if property was taken from the defendants, this is not necessarily unconstitutional. "The fundamental requisite of due process of law is the opportunity to be heard . . . The hearing must be at a meaningful time and in a meaningful moment . . ." (Internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 512, 778 A.2d 33 (2001). The defendants are afforded the opportunity to be heard subsequent to the granting of the automatic extension of the statute of limitations. In fact, this decision is in response to the defendants' hearing concerning their alleged "deprivation."
The defendants have failed to demonstrate how the legislature unconstitutionally deprived the defendants of their § 52-555 property interests by requiring prospective plaintiffs to ask for the extension of limitations. The fact that the legislature chose for the plaintiffs to undergo a procedural hurdle of filing a petition before receiving their property interest in the extended statute of limitations is not a deprivation of the defendants' due process.
The court finds that the defendants herein have not shown, beyond a reasonable doubt, that § 52-190a(b) is unconstitutional. The defendants' motion for summary judgment as to counts six and seven is denied. Because the loss of consortium claim in count eight is contingent on the outcome of their wrongful death arguments, the motion for summary judgment is denied on that count as well.
In the defendants' memorandum in support of their motion, they argue that count eight, which alleges a cause of action for loss of consortium, is a derivative claim "dependent on the legal existence of [a] predicate action." As such, they assert that because the plaintiffs' claims of wrongful death contained in counts six and seven are legally insufficient, the plaintiffs' individual claim of loss of consortium against the defendants in count eight, is also legally insufficient. See Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, 62 n. 5, 882 A.2d 1254, cert. denied, 276 Conn. 926 (2005).