Opinion
No. X10-UWY-CV-05-4010146
Memorandum Filed February 27, 2007
Torts — Medical Malpractice — Certificate of Good Faith — Ninety-day Extension Runs from the Expiration of the Normal Limitations Period, Not from the Filing of the Petition for Extension.
Torts — Medical Malpractice — Limitations of Actions — Ninety-day Extension for Preparing a Certificate of Good Faith Runs from the Expiration of the Normal Limitations Period, Not from the Filing of the Petition for Extension. The 90-day extension to the statute of limitations statutorily authorized to allow additional time for the preparation of a good faith certificate in a medical malpractice action, CGS § 52-190a(b), runs from the otherwise applicable termination of the limitation period, not from the filing of a petition for such an extension, even though arguably no additional time would be needed if an extension were filed more than 90 days before the expiration of the period. The defendant unsuccessfully argued that any 90-day extension expires 90 days after the filing of a petition, regardless of when the petition is filed. Under this interpretation a petition filed within 90 days before the normal termination date would provide an extension of less than 90 days (unless filed on the last day), and a petition filed earlier than 90 days from the normal termination date would have no effect at all.
Torts — Medical Malpractice — Certificate of Good Faith — Ninety-day Extension Applies to Both the Normal Two-year Limitation Provision and the Three-year Repose Provision of the Statute of Limitations for Negligence Actions.
Torts — Medical Malpractice — Limitations of Actions — Ninety-day Extension for Preparing a Certificate of Good Faith Applies to Both the Normal Two-year Limitation Provision and the Three-year Repose Provision of the Statute of Limitations for Negligence Actions. The 90-day extension to the statute of limitations for medical malpractice actions, authorized to allow additional time for preparation of a good faith certificate, CGS § 52-190a(b), extends both the two-year limitation period and the three-year repose period established by the applicable statute, the statute of limitations for negligence actions seeking recovery for personal injury or property damage, CGS § 52-584.
Presently before the court are two motions for summary judgment. The first motion for summary judgment was filed on behalf of defendant, Stamford Hospital, as to the second and fourth counts of the plaintiffs' complaint. The second motion for summary judgment was filed on behalf of defendant, Philip Corvo, M.D., as to the first and third counts of the plaintiffs' complaint. Because the court finds there to be a genuine issue of material fact as to when the plaintiff, Jeffrey Berkowitz, discovered or in the exercise of reasonable care should have discovered his injury, each of these motions are denied.
The plaintiffs have since filed a Revised Complaint (August 11, 2006), and the fourth count of the original complaint is now reflected in the fifth count of the revised complaint.
The plaintiffs have since filed a Revised Complaint (August 11, 2006), and the third count of the original complaint is now reflected in the fourth count of the revised complaint.
The matter before the court involves a medical malpractice action claiming negligent treatment and care of Jeffrey Berkowitz on the part of the defendants. The injuries suffered by the plaintiff are alleged to have resulted from two surgical procedures performed by Dr. Corvo at Stamford Hospital between November and December of 2001. The first procedure was performed on November 12, 2001. The second procedure was performed either on December 10, 2001 or December 17, 2001. On November 10, 2003 the plaintiffs petitioned for an automatic ninety-day extension of the statute of limitations, pursuant to section 52-190a(b) of the Connecticut General Statutes, which was granted. The plaintiffs commenced this action February 8, 2005.
The plaintiffs and Stamford Hospital alleges the final surgery occurred on December 10, 2001, while Dr. Corvo alleges the final surgery occurred on December 17, 2001. The discrepancy is immaterial for present purposes.
The defendants have separately filed motions for summary judgment. Both claim the present action is barred by section 52-584 of the Connecticut General Statutes. Specifically the defendants claim the statute of limitations portion of section 52-584 bars the present action because the plaintiff failed to bring the present claim "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." Conn. Gen. Stat. § 52-584. Based on the materials presented to court, there is a question of fact regarding the applicability of the statute of limitations portion of section 52-584.
Connecticut General Statute § 52-584 provides in pertinent part:
No action to recover damages for injury to the person . . . caused by negligence . . . or by malpractice of a physician, surgeon, . . . [or] hospital. . . 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. . .
Conn. Gen. Stat. § 52-584. The two-year provision refers to the statute of limitations portion of the statute, while the three-year provision of the statute refers to the statute of repose portion of the statute. See Witt v. St. Vincent's Medical Center, 252 Conn. 363, 369 n. 5 (2000): see also Barrett v. Montesano, 269 Conn. 787, 794 (2004) ("Despite their different functions, we have stated on more than one occasion that the three year provision in § 52-584 is the repose section of the statute of limitations." (Internal quotation and citation omitted.) (Emphasis removed.))
"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 moving for summary judgment has the burden of showing the absence of any genuine issue of material facts and that the party is, therefore, entitled to judgment as a matter of law . . ." Neuhaus v. Decholnoky, 280 Conn. 190, 199 (2006) (internal quotation and citation omitted).
The defendants separately suggest three dates when the statute of limitations commenced for the present action. Stamford Hospital suggests the statute of limitations commenced to run "at the very latest" on December 10, 2001. Dr. Corvo suggests the statute of limitations commenced by December 17, 2001. Dr. Corvo also suggests the statute of limitations may have commenced to run, "assuming, arguendo, that the continuing course of treatment exception applied," on February 12, 2002, which is when Mr. Berkowitz last consulted Dr. Corvo.
The defendants rely on dates relevant to when the negligence complained of occurred. However, the "date of the act or omission complained of" language of section 52-584 relates exclusively to the statute of repose portion of the statute. See Blanchette v. Barrett, 229 Conn. 256, 265 (1994). The motions for summary judgment acknowledge the Supreme Court's affirmation that the "ninety day extension provided by § 52-190a(b) applies equally to both [the statute of limitations and statute of repose] sections of § 52-584." Barrett v. Montesano, 269 Conn. 787, 796 (2004). The defendants propose, however, the ninety-day extension of section 52-190a(b) begins when granted and expires ninety days therefrom. Alternatively, they argue it should run no longer than two years after the date of the alleged injury. They argue this is the only reasoned analysis of the statute's application. Otherwise, they point to the apparent absurdity of asking for a ninety-day extension of time for a deadline that is over a year away from expiring. They reason the need for the extension was because the time period is expiring. Under this interpretation of the statute, the plaintiff would have been obligated to file the present action within ninety days of the extension being granted (which in this case would have been ninety days from November 24, 2003).
This court rejects the defendants' proposed interpretation of section 52-190a(b). The text of the statute unambiguously provides the ninety-day extension of the statute of limitations shall automatically be granted. This portion of the statute is plain and unambiguous. Conn. Gen. Stat. § 1-2z. Therefore the court must apply the language as it is written. The language of the statute also requires the extension be applied to both the statute of limitation and statute of repose portions of section 52-584 equally. See Barrett, 269 Conn. at 796. Furthermore, there is no language in section 52-190a(b) from which to infer the extension is intended to constrain that already provided in the statute of limitations. Should a plaintiff file for an extension on the day the complained-of injury occurred, it would appear nonsensical to then limit the plaintiff to the ninety-day period applied for, and foreclose the plaintiff from the statute of limitations period prescribed in 52-584. The ninety-day extension of section 52-190a(b) is intended to complement the statute of limitations imposed in section 52-584, and extend the statute of limitations by ninety days when granted. Since the present action was filed within ninety days from the statute of repose period provided in section 52-584, it is not barred by section 52-584 of the Connecticut General Statutes. The court finds this application of the plain language of the statute is not an absurd or unworkable result. Conn. Gen. Stat. § 1-2z.
The defendants also contend the present action is barred by the statute of limitations portion of section 52-584 because the plaintiff had sufficient knowledge of the facts needed to bring this action at the time of the three proposed dates outlined above. The statute of limitations portion of section 52-584 "begins to run when a plaintiff either sustains or discovers the injury or, in the exercise of reasonable care, should have discovered the injury." Lagassey v. State, 268 Conn. 723, 738 (2004). "In this context an injury occurs when a party suffers some form of actionable harm." Burns v. Hartford Hospital, 192 Conn. 451,460 (1984). "`[A]ctionable harm' does not occur until the plaintiff discovers an injury and causation." Lagassey, 268 Conn. at 743 (internal citation omitted) (emphasis supplied). "[T]he statute of limitations begins to run when the claimant has knowledge of facts which would put a reasonable person on notice of the nature and extent of an injury and that the injury was caused by the wrongful conduct of another . . . The focus is on the plaintiff's knowledge of facts, rather than on discovery of applicable legal theories." Catz v. Rubenstein, 201 Conn. 39, 47 (1986) (internal quotation and citation omitted).
The defendants are unable to offer evidence to remove all questions of material fact and establish the plaintiff had sufficient knowledge of the facts which would have commenced the statute of limitations on those dates provided to the court. The only evidence offered by the defendants in support of the action that the plaintiff had the requisite knowledge is that the plaintiffs filed for a ninety-day extension, pursuant to section 52-190a(b), on November 24, 2003. The defendants attempt to impute the filing of the extension as evidence the plaintiff was aware of the actionable harm on the dates provided by the defendants, and that the filing was performed in anticipation of the statute of limitations expiring (as it would relate to the dates provided by the defendants). There is no evidence, however, to suggest the plaintiffs were actually aware of the actionable harm at any time prior to the filing of the section 52-190a(b) extension. The only thing that can be concluded from the November 24, 2003 date is that, as of that date, the plaintiff knew he had a bad result and was consulting with an attorney to investigate whether there was actionable harm.
The purpose of section 52-190a(b) is to allow for an "investigation prior to the filing of an action to determine whether there are grounds for a good faith belief that there has been negligence in the care and treatment of the claimant." Barrett, 269 Conn. at 796. Viewing the evidence in the light most favorable to the nonmoving party, the plaintiffs' filing of an extension pursuant to section 52-190a(b) can be interpreted as nothing more than an attempt to afford themselves to the privilege of the extension in order to properly investigate the facts of the case giving rise to actionable harm. Whatever import the relevance of the filing date of the section 52-190a(b) extension should be provided is inappropriate for the purposes of summary judgment under the facts presented herein. There remains a genuine issue of material fact as to when the plaintiffs in this action had knowledge of facts which would put a reasonable person on notice of the nature and extent of an injury and that the injury was caused by the wrongful conduct of another so as to commence the statute of limitations. The motions for summary judgment before the court are denied.