Opinion
HHBCV145017357S
10-25-2017
James Doe et al. v. Robert Rackliffe
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Robert E. Young, Judge.
FACTS AND PROCEDURAL HISTORY
There are six companion actions brought by a total of seven plaintiffs against defendant Robert Rackliffe. The allegations in each against Rackliffe are claims of medical malpractice and sexual assault. This court has previously ruled on motions for summary judgment filed by Rackliffe as to the claims of medical malpractice in the other five actions. In those actions, 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 time-barred.
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, Robert Rackliffe is referred to as the defendant.
John Doe #2 v. Rackliffe, Superior Court, judicial district of New Britain, Docket No. CV-14-5016102-S, (December 14, 2015, Young, J.); Jane Doe v. Rackliffe, Superior Court, judicial district of New Britain, Docket No. CV-15-5016759-S, (March 29, 2017, Young, J.); Jane Doe #2 v. Rackliffe, Superior Court, judicial district of New Britain, Docket No. CV-15-5017021-S (March 29, 2017, Young, J.); Jane Doe #3 v. Rackliffe, Superior Court, judicial district of New Britain, Docket No. CV-15-5017022-S (March 29, 2017, Young, J.); John Doe #3 v. Rackliffe, Superior Court, judicial district of New Britain, Docket No. CV-15-5016759-S (March 29, 2017, Young, J.).
After interlocutory appeal, the present action was transferred from the judicial district of Hartford to be a companion to the other five actions filed in the judicial district of New Britain. The defendant has filed a motion for partial summary judgment in this action, which is similar to those filed in the other five actions.
The court's denial of the plaintiffs' use of pseudonyms was affirmed by our Appellate Court. Doe v. Rackliffe, 173 Conn.App. 389, 164 A.3d 1 (2017).
Likewise, the allegations in this action are similar to the other five. 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 for physical checkups and for various ailments. On numerous occasions during these examinations, Rackliffe digitally penetrated each plaintiff's anus and manipulated his genitalia. This conduct resulted in severe and potentially permanent physical and emotional injury to each plaintiff.
In the present action, the plaintiffs filed a request for leave to file a second amended complaint, to which the defendant objected. The motion for summary judgment is directed to the first amended complaint. At oral argument, counsel for the plaintiff stated that the first amended complaint was the operative complaint. The parties did not seek to defer the motion for summary judgment and opposition to same to a time after resolution of the request for leave to amend and objection. Therefore, the court decides the motion for summary judgment on the allegations contained in the (first) amended complaint, 143.00, which is the operative complaint.
The first count and third counts allege claim of sexual assault of Bradley Bray and James Bray respectively by the defendant. The second and fourth counts allege negligence in the form of medical malpractice of the defendant in his physical examinations of Bradley Bray and James Bray respectively.
The allegation of medical malpractice in the second and fourth counts is that the defendant knew or should have known that digital penetration of the anus and manipulation of genitalia without clear medical indication, and in the absence of parental consent, violates the standard of care of pediatric medicine. The plaintiffs attached to their complaint 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 defendant has filed a motion for summary judgment as to the second and fourth counts of the first amended complaint, asserting that they are time-barred. The plaintiffs have filed a memorandum in opposition, to which the defendant filed a reply. Argument on the motion and opposition was heard on September 25, 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). " The 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.) Romprey, 310 Conn. 321.
ANALYSIS
In his motion for summary judgment, the defendant argues that the second and fourth counts of the operative complaint are time barred by the statute of limitations. The defendant asserts that these 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 the second and fourth counts were brought more than three years after the alleged act or omission, Rackliffe seeks 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 opposition to the motion, the plaintiffs argue that the second 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 third counts. Hence, " under this unique set of facts, where medical negligence has left the plaintiff [sic] with the belief that he has been subjected to sexual assault, unrecognized for decades, Conn. Gen. Stat. § 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 motion 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."
In his reply to the opposition, Rackliffe further argues that the second and fourth counts do not contain allegations that the plaintiffs' 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 6 in the second count and the fourth count respectively asserts, " On numerous occasions during the Period of Treatment when [the plaintiff] presented to the Decedent's office as a patient of the Decedent for treatment, the Decedent digitally penetrated the Plaintiff's anus and manipulated the Plaintiff's genitalia." Paragraph 7 of the respective second and fourth counts 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 6 and 7 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 second count and the fourth count 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").
" 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 1986 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 banc 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 case 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 . . ." Doe, 323 Conn. 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.) Doe, 323 Conn. 333.
In the case at bar, the allegations in the second count and fourth count are not claims arising out of sexual abuse. They are claims of pure 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 this case, 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 and third count, respectively. These are causes of action to which § 52-577d is clearly applicable.
There is no genuine issue of material fact that the allegations of the second count and fourth count are claims of medical malpractice rather than sexual assault, sexual abuse or sexual exploitation. Based on the allegations asserted in the operative complaint, the last pediatric physical checkup the defendant performed on the plaintiffs was in the 1980s. Because the statute of limitations under § 52-584 is applicable for the negligent medical malpractice claims of the second count and fourth count, and provides a three year period, which was not tolled, such claims brought in 2014 are untimely.
ORDER
The defendant's motion for partial summary judgment (139.00) as to the second count and fourth count of the amended complaint is granted.