Opinion
HHBCV155016759S
03-29-2017
Jane Doe v. Robert Rackliffe
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT
Robert E. Young, J.
FACTS AND PROCEDURAL HISTORY
There are six companion actions brought by a total of seven plaintiffs against defendant Robert Rackliffe. The allegations against Rackliffe are claims of medical malpractice and sexual assault. This court has previously ruled on a motion for summary judgment filed by Rackliffe as to the claims of medical malpractice in Doe v. Rackliffe [ John Doe #2 ], Superior Court, judicial district of New Britain, Docket No. CV-14-5016102-S (December 14, 2015, Young, J.) [61 Conn.L.Rptr. 460, ]. In that action, this court granted summary judgment to the defendant as to the counts sounding in medical malpractice and negligent infliction of emotional distress, as these counts were untimely.
Rackliffe died on December 16, 2015. William J. Forbes, executor of the estate of Robert Rackliffe was substituted as the defendant on November 16, 2016. For ease of comprehension, the defendant is referred to as " Rackliffe."
Rackliffe has filed similar motions for summary judgment in four of the five companion actions. No motion for summary judgment has been filed in the sixth companion action, Doe v. Rackliffe [ James Doe ], Superior Court, judicial district of New Britain, Docket No. CV-14-5017357-S. That matter is currently on appeal for an unrelated issue.
The allegations in each of these four actions are similar. Rackliffe was a doctor specializing in pediatric medicine in New Britain. The plaintiffs were minor patients of Rackliffe from the early 1970s until the 1980s. During that period, the plaintiffs visited Rackliffe annually for physical checkups. On numerous occasions during these checkups, Rackliffe digitally penetrated each plaintiff's anus. This conduct resulted in severe and potentially permanent physical and emotional injury.
In Jane Doe, Jane Doe #2 and Jane Doe #3, the first count alleges a claim of sexual assault by Rackliffe. The second count alleges intentional infliction of emotional distress. The third count alleges negligence in the form of medical malpractice. The fourth count alleges negligent infliction of emotional distress. In John Doe #3, the first count alleges sexual assault. The second count alleges negligence in the form of medical malpractice.
The allegation of medical malpractice in each of these actions is that Rackliffe knew or should have known that routine digital penetration of a child without clear medical indication, and in the absence of parental consent, violates the standard of care of pediatric medicine. The plaintiffs attached to their complaints a certificate of good faith and the opinion letter of a similar healthcare provider, pursuant to the dictates of General Statutes § 52-190a(a).
The allegations of the fourth counts in the Jane Doe, Jane Doe #2 and Jane Doe #3 actions are claims of negligent infliction of emotional distress. The claims arise out of the medical malpractice asserted in the third count of these actions.
In Jane Doe, Jane Doe #2 and Jane Doe #3, Rackliffe has filed a motion for summary judgment as to the third and fourth counts of the complaints, asserting that they are time-barred. In John Doe #3, Rackliffe has filed a motion for summary judgment as to the third and fourth counts of the plaintiff's complaint, but there are only two counts, that of sexual assault and negligence in the form of malpractice. The court views this motion as being directed to the second count only.
Because of the similarity of the claims, counsel for all parties appear to have extensively duplicated portions of their memoranda in each action. For example, in Jane Doe, Jane Doe #2 and Jane Doe #3, the plaintiffs refer in their memoranda and/or supplemental memoranda to amended complaints but there are no amended complaints in these particular actions. The court can readily ascertain the points made by the parties. Therefore any technical or scrivener's errors are overlooked as they are not critical to the analysis.
The plaintiffs have filed memoranda and supplemental memoranda in opposition, to which the defendant filed replies. Argument on all four motions was heard on February 27, 2017.
LEGAL STANDARD
" 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). " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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 . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed 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, 10-11, 938 A.2d 576 (2008).
" Summary judgment may be granted where the claim is barred by the statute of limitations . . . Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute . . ." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). " [I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period . . . When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." (Citation omitted.) Id., 321.
ANALYSIS
In his motions for summary judgment, Rackliffe argues that the third and fourth counts of the operative complaints in Jane Doe, Jane Doe #2 and Jane Doe #3, and the second count of the John Doe #3 operative complaint are time barred by the statute of limitations. Rackliffe asserts that the counts sound in medical malpractice and negligence, which are limited by a three-year statute of limitations under General Statutes § 52-584. Since the plaintiffs' causes of action in counts three and four were brought more than three years after the alleged act or omission, Rackliffe seeks partial summary judgment on these counts as a matter of law.
General Statutes § 52-584 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 . . ."
In their oppositions to the motions, the plaintiffs argue that the third and fourth counts sound in medical negligence, and the " medically negligent procedure was inextricably intertwined and inseparable" from the sexual assault allegations in the first and second counts. Hence, " under this unique set of facts, where medical negligence has the effect upon the plaintiff of a sexual assault . . . § 52-577d is the appropriate statute of limitations, and the case is not time-barred." The plaintiffs contend that because the operative complaint was filed within the thirty years allowed in § 52-577d, the motions for partial summary judgment should be denied.
General Statutes § 52-577d provides: " Notwithstanding the provisions of section 52-577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority."
The plaintiffs also assert in the supplemental opposition that there are material facts in dispute but articulate no such facts. To the extent that the plaintiff's claim facts are in dispute, these amount to the plaintiffs' claim that the conduct of the defendant constituted sexual assault. See plaintiffs' supplemental opposition to motion for summary judgment, Argument A. 3.
In his replies to the oppositions, Rackliffe further argues that counts three and four in Jane Doe, Jane Doe #2 and Jane Doe #3, and the second count of John Doe #3, do not contain allegations that the plaintiff's harm was caused by sexual assault, sexual abuse or sexual exploitation. Thus, these counts are not governed by the statute of limitations in § 52-577d.
Section § 52-577d does not apply to causes of action of negligence or malpractice unless the claims are based on " sexual abuse, sexual exploitation or sexual assault." Contrastingly, § 52-584 does include actions " caused by negligence . . . or by malpractice of a physician . . ." The court analyzes the contested causes of action to ascertain whether they are based in medical malpractice.
In Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 358, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001), the Appellate Court outlined a three-factor test in determining whether a claim sounds in medical malpractice: " whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment."
The Trimel three-factor test provides guidance in determining whether the allegations in counts three and four sound in medical malpractice under § 52-584. Factors one and two are satisfied because the defendant is being sued in his capacity as a medical professional, and the alleged negligence arises out of the medical professional-patient relationship between the parties when the plaintiffs were the defendant's patients from the 1970s through the 1980s. Factor three also supports interpreting the alleged negligence as malpractice because the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment. Paragraph 4 in the third count of the Jane Doe, Jane Doe #2 and Jane Doe #3 actions, and in the second count of the John Doe #3 action, claims that during numerous occasions during the alleged period of treatment, when the plaintiff presented to the defendant's office as a patient, the defendant " digitally penetrated the plaintiff's anus." Paragraph 5 of the third count of the Jane Doe, Jane Doe #2 and Jane Doe #3 actions, and of the second count of the John Doe #3 action, further alleges that the defendant knew, or should have known, that " digital examinations of the anus of a prepubertal and/or postpubertal child . . . is a violation of the standard of care for pediatric medicine." The allegations contained in paragraphs 4 and 5 of these counts are substantially related to medical diagnosis involving the exercise of medical judgment. In applying the Trimel test, it is clear that the third count of the Jane Doe, Jane Doe #2 and Jane Doe #3 actions, and the second count of the John Doe #3 action, sound in medical malpractice.
These counts neither allege nor mention the required action of sexual assault, sexual abuse or sexual exploitation, as intended by the legislative purpose of § 52-577d. Rather, the cause of action alleged in these counts arises from medical conduct, and § 52-584 provides the appropriate statute of limitations. That the plaintiffs also provided a " good faith" certificate, which is a requirement for medical malpractice causes of action pursuant to General Statutes § 52-190(a), is further evidence of their intent to assert a claim of medical malpractice.
Compare St. Paul Fire & Marine Ins. Co. v. Shernow, 222 Conn. 823, 830, 610 A.2d 1281 (1992) (Supreme Court affirmed trial court's determination that professional liability insurance covered defendant's alleged sexual assault and dental malpractice against his patient because " the medically negligent procedure is so inextricably intertwined and inseparable from the intentional conduct that serves as the basis for the separate claim of a sexual assault").
The fourth count of the Jane Doe, Jane Doe #2 and Jane Doe #3 actions incorporates paragraphs 1-5 of the third count and is a claim of negligent infliction of emotional distress arising from medical malpractice. " [I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that ils conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 446, 815 A.2d 119 (2003); Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978). The statute of limitations in § 52-584 pertains to medical malpractice actions and mental suffering, which include claims for negligent infliction of emotional distress. Rivera v. Double A Transportation, Inc., 248 Conn. 21, 30-31, 727 A.2d 204 (1999). In the fourth count, the plaintiffs have not asserted the required allegation of sexual assault, sexual abuse or sexual exploitation, as intended by the legislative purpose of § 52-577d. Rather, the cause of action alleged in the fourth count arises from medical conduct, and § 52-584 provides the appropriate statute of limitations.
" It is basic that common sense must be used in statutory construction and that [a] statute should not be interpreted in any way to thwart its purpose . . . [or so as to lead] to absurd consequences and bizarre results." (Internal quotation marks omitted.) Keeney v. Fairfield Resources, Inc., 41 Conn.App. 120, 132, 674 A.2d 1349 (1996). It is a basic rule of statutory construction that " absent manifest intent to repeal an earlier statute, when general and specific statutes conflict they should be harmoniously construed so the more specific statute controls." McKinley v. Musshorn, 185 Conn. 616, 624, 441 A.2d 600 (1981).
" It is clear from the legislative history of § 52-577d that the purpose of the 1991 amendment [extending the statute of limitations to seventeen years] was to allow victims to recall sexual abuse that had been repressed, and to bring an action against the perpetrators of that abuse as part of the victim's healing process." Giordano v. Giordano, 39 Conn.App. 183, 191, 664 A.2d 1136 (1995). " A review of the record of debate on this bill [number 86-401 of the 1987 Public Acts] demonstrates that it was intended to provide minor victims of sexual abuse with an opportunity to exercise their rights against the offender once they had attained the age of majority and could exercise control over their lives. See generally [29 H.R. Proc., Pt. 12, 1986 Sess., pp. 4387-97]." Todd M. v. Richard L., 44 Conn.Supp. 527, 532, 696 A.2d 1063 (1995).
In Doe v. Boy Scouts of America Corp., 323 Conn. 303, 147 A.3d 104, motion for reconsideration en bane denied, 323 Conn. 942, 151 A.3d 841 (2016), our Supreme Court applied the thirty-year statute of limitation of § 52-577d to claims of negligent conduct. This case, however, is distinguishable from the cases at bar. In Doe, the plaintiff brought an action for negligence, recklessness and unfair trade practices against Boy Scouts of America Corporation arising out of allegations that he was sexually abused as a child by his patrol leader. The claims were brought against this third party for the sexual abuse committed upon him by the patrol leader. " At trial, the plaintiff's theory was that the defendant had been negligent because, even though it had been aware of numerous incidents of sexual abuse during scouting activities in the decades preceding the 1970s, both by adult and minor Boy Scout participants, it failed to take precautions against sexual abuse . . ." Id., 311. The court found the following language of § 52-577d to be controlling: " [N]o action to recover damages for personal injury to a minor . . . caused by sexual abuse . . . [may be brought by such person later than thirty years from the date such person attains the age of majority]." (Emphasis altered.) Id., 333.
In the cases at bar, the allegations in the third and fourth counts of Jane Doe, Jane Doe #2 and Jane Doe #3, and in the second count of the John Doe #3, are not claims arising out of sexual abuse. They are claims of pure medical malpractice and, in the Jane Doe, Jane Doe #2 and Jane Doe #3 actions, claims of negligent infliction of emotional distress arising from medical malpractice. While the defendant in Doe was accused of negligence in preventing sexual abuse, this is not the factual situation of the contested counts in the cases at bar, which do not allege negligent acts of, or based upon, sexual assault, sexual abuse or sexual exploitation.
The plaintiffs are not precluded from prosecuting their claims of sexual abuse, which is asserted in the first count of all of the actions. They are also able to pursue the claims of intentional infliction of emotional distress in the second counts of the Jane Doe, Jane Doe #2 and Jane Doe #3 actions. These are causes of action to which § 52-577d is clearly applicable.
In their supplemental oppositions to the motions for summary judgment, the plaintiffs cite Rackliffe's deposition testimony in which he admits that annual rectal examinations are " too much . . . unless there's an indication that it should be followed." The plaintiffs appear to argue that this is an admission of sexual assault. There is no evidence provided that Rackliffe equated the anal manipulations to sexual assault. Assuming, arguendo, that the anal manipulation was sexual assault, this does not impact the analysis of the contested counts, which are bereft of any allegations of sexual assault.
Also, for the first time, in their supplemental oppositions to the motions for summary judgment, the plaintiffs assert that the contested counts are claims of lack of informed consent, constituting a battery, so as to bring the claims under § 52-577d. This new assertion is creative. To the extent that there is any assertion of lack of consent, it is contained in the fifth paragraph of the third and fourth counts of the Jane Doe, Jane Doe #2 and Jane Doe #3, actions and the second count of the John Doe #3 action: " At all times mentioned herein, the Defendant knew or in the exercise of reasonable care should have known that digital examinations of the anus of a prepubertal and/or postpubertal child, performed routinely, without a clear indication, and in the absence of the express consent of a parent, is a violation of the standard of care for pediatric medicine." (Emphasis added.) This is not an assertion of battery. It is an assertion of violation of the standard of care, i.e., medical malpractice.
A lack of express consent is not the equivalent of a lack of informed consent, which is a failure to disclose a known material risk of a proposed procedure. " In order to prevail on a cause of action for lack of informed consent, a plaintiff must prove both that there was a failure to disclose a known material risk of a proposed procedure and that such failure was a proximate cause of his injury. Unlike a medical malpractice claim, a claim for lack of informed consent is determined by a lay standard of materiality, rather than an expert medical standard of care which guides the trier of fact in its determination." Shortell v. Cavanagh, 300 Conn. 383, 388, 15 A.3d 1042 (2011).
Assuming, arguendo, that the lack of express consent of a parent for the rectal examination is the equivalent of lack of informed consent, the plaintiffs still have the obstacle of transforming this allegation into a claim of sexual assault, sexual abuse or sexual exploitation. There is no such claim in the contested counts.
Additionally, the plaintiffs assert an argument that, because claims of sexual assault may arise from a medically negligent procedure invoking medical malpractice insurance coverage, St. Paul Fire & Marine Ins. Co. v. Shernow, 222 Conn. 823, 830-31, 610 A.2d 1281 (1992), their claims in the contested counts are controlled by § 52-577d. This argument fails. Firstly, the plaintiffs conflate the issue of insurance coverage which was the subject of St. Paul Fire & Marine Ins. Co . with the issue of whether particular actions are governed by one statute or another. The reasoning of one simply does not translate to the other. Secondly, the plaintiffs' argument, similar to the other arguments, does not address the fact that their contested counts do not assert sexual assault, sexual abuse or sexual exploitation to provide application of § 52-577d.
Lastly, the plaintiffs further assert that the three-year limitation of § 52-584 has not tolled because Rackliffe had a continuing duty of care which would be obviated only by informing his patients at some time later that he had performed an unnecessary medical procedure.
" [W]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed." Stuart v. Snyder, 125 Conn.App. 506, 510, 8 A.3d 1126 (2010), cert. denied, 300 Conn. 921, 14 A.3d 1005 (2011) (discussing continuing course of conduct tolling application of General Statutes § 52-577). In general, " in order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act." (Internal quotation marks omitted.) Saint Bernard School of Montville, Inc. v. Bank of America, 312 Conn. 811, 835, 95 A.3d 1063 (2014).
In the present actions, the plaintiffs have offered no evidence in support of the contested counts that Rackliffe was aware of tortious conduct at the time of the anal probes. One must bear in mind, that for the purposes of tolling the § 52-584 statute of limitations, the claims raised by the plaintiffs of sexual assault, sexual abuse or sexual exploitation are not applicable. The only issue raised as to the tolling issue is whether there was a continuing course of conduct. The continuing course of conduct claimed by the plaintiffs here is a duty to inform the plaintiffs of improper treatment. The only evidence proffered by the plaintiffs that the anal probe was " too much" or unwarranted is in the context of contemplation at the deposition in response to questioning. There is no evidence that Rackliffe was aware within the limitations period of § 52-584 of any malpractice. Thus, no duty to inform arose within that period which would toll the limitations of the statute. Zielinski v. Kotsoris, 279 Conn. 312, 330, 901 A.2d 1207 (2006) (" Even if we were to assume that an initial wrong occurred, or specifically, that [the physician] was negligent in April 1996, when she failed to diagnose the plaintiff's tumor and failed to consult with a neuroradiologist or other specialist more experienced in reading such MRIs, the plaintiff failed to present evidence that demonstrates the existence of some disputed factual issue in response to the defendants' motion . . . On the record before us, this case is distinguishable from our decision in Witt v. St. Vincent's Medical Center, [252 Conn. 363, 746 A.2d 753 (2000)], because the plaintiff has not demonstrated that [the physician] or anyone else affiliated with [the physician's group] or the hospital had any concern in 1996 that the MRI generated and read at that time indicated the presence of a tumor." [Citation omitted; internal quotation marks omitted.])
Further, the plaintiffs have failed to cite any authority for the proposition that Rackliffe, had he been aware, was obligated to disclose his tortious conduct. Rackliffe's relationship with the plaintiffs ended in the 1980s. " [I]n the absence of a continuing special relationship, there must be a subsequent wrongful act that is related to the prior negligence . . . In the present matter, in which no continuing special relationship exists, the plaintiff essentially requests that the three-year statutes of limitations be tolled, indefinitely, on the basis of his former attorney's ongoing failure to confess his earlier tortious act. To accept this argument, however, would render the three-year statutes of limitations meaningless." (Citation omitted; internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286, 321-22, 94 A.3d 553 (2014).
There is no genuine issue of material fact that the allegations of the third counts of the Jane Doe, Jane Doe #2 and Jane Doe #3 actions, and the second count of the John Doe #3 action, are claims of medical malpractice rather than sexual assault, sexual abuse or sexual exploitation. There is no genuine issue of fact that the fourth counts of the Jane Doe, Jane Doe #2 and Jane Doe #3 actions are claims of negligent infliction of emotional distress based upon medical malpractice rather than sexual assault, sexual abuse or sexual exploitation. There is no genuine issue of material fact demonstrating that Rackliffe was aware of malpractice on the plaintiffs which would raise a continuing duty to inform.
Based on the allegations asserted in the operative complaints, the last pediatric physical checkup the defendant performed on the plaintiffs would have been in the 1980s. Because the statute of limitations under § 52-584 is applicable for the negligent medical malpractice claims of the third and fourth counts, and provides a three-year period, which was not tolled, such claims brought in 2015 are untimely.
ORDER
The defendant's motion for partial summary judgment as to the third and fourth counts of the Jane Doe, Jane Doe #2 and Jane Doe #3 complaints is granted. The defendant's motion for partial summary judgment as to the second count of the John Doe #3 complaint is granted.