Opinion
CV156053441S
02-16-2018
Sandra Forest v. Anne Millien et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Bellis, Barbara N., J.
MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT NO. 199
BELLIS, J.
The plaintiff, Sandra Forest, filed an eight-count, fourth revised complaint against Anne Millien (Millien), Lifeline Monitoring Services, LLC (Lifeline), and Bridgeport Hospital (the defendant) on August 18, 2016. In count eight, which is directed against the defendant, the plaintiff alleges the following facts. On January 25, 2013, the plaintiff underwent spinal surgery at Bridgeport Hospital. Prior to the surgery, the defendant contracted with Lifeline to provide intraoperative neuromonitoring services. The surgery was performed by surgeons, Michael Opalak, David Brown, and Allen Schlein. Millien, a technician employed by Lifeline, performed neuromonitoring services during the surgery.
The plaintiff filed a revised complaint on February 5, 2016, a second revised complaint on March 23, 2016, and a third revised complaint on March 30, 2016. Bridgeport Hospital filed an answer on October 17, 2016, which includes a special defense. Pursuant to Practice Book § 10-60(a)(3), the fourth revised complaint is the operative complaint. Accordingly, the court shall consider the defendant’s motion for summary judgment as being applicable to it.
The plaintiff further alleges the following additional facts. According to Millien’s postsurgical report, there were no neurological problems during the surgery. Following her surgery, the plaintiff discovered that she was unable to move her legs. A computerized axial tomography scan revealed bone fragments on the plaintiff’s spinal canal, and she immediately underwent a second surgery. After her second surgery, the plaintiff continued to suffer from lower extremity paraparesis. On January 30, 2013, the plaintiff was discharged to a rehabilitation center. On February 13, 2013, the plaintiff was transferred back to Bridgeport Hospital for additional treatment relating to her surgery, as well as for an infection. The plaintiff remained there until she was discharged on April 2, 2013.
The plaintiff alleges that the defendant, acting through its agents, servants, employees, and medical staff, was negligent because it, inter alia, failed to appropriately select, hire, and supervise medical providers of intraoperative neuromonitoring. Due to the defendant’s negligence, the plaintiff alleges, she suffered severe and permanent injuries.
On October 17, 2016, the defendant filed a special defense asserting that the plaintiff’s claim of negligence is barred by the statute of limitations set forth in General Statutes § 52-584. The defendant thereafter filed a motion for summary judgment on the same basis on April 13, 2017. The defendant’s motion is accompanied by an uncertified transcript of the plaintiff’s deposition. The plaintiff responded with a memorandum in opposition on November 8, 2017. The plaintiff’s memorandum is accompanied by numerous exhibits, medical records, and her own affidavit. The defendant then filed a rebuttal to the plaintiff’s memorandum on November 14, 2017. The court heard oral arguments on the motion on November 17, 2017.
The defendant subsequently filed an answer and special defense to the fourth revised complaint on June 16, 2017, which again asserts this special defense.
DISCUSSION
Practice Book § 17-49 provides in relevant part: Summary " judgment ... shall be rendered forthwith if the pleadings, affidavits and 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.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). " Summary judgment may be granted where a 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 the statutory limitation period." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016). " 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." (Citation omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-406, 848 A.2d 1165 (2004).
The defendant asserts that the plaintiff’s claim of negligence is untimely. The substance of its position is that the plaintiff discovered an actionable harm on January 25, 2013, when she realized she was unable to move her legs, or no later than April 2, 2013, the date of her discharge from the hospital. The plaintiff concedes that she discovered her injury on January 25, 2013. The plaintiff, however, counters that a genuine issue of material fact still exists as to when she discovered, or, in the exercise of reasonable care, should have discovered, that the defendant caused actionable harm.
The plaintiff contends that she first knew of a causal connection between her injury and the defendant’s negligence when she received a copy of a report by Ricky Sayegh, another physician, on August 13, 2015. The report revealed that the neuromonitoring study performed during the plaintiff’s initial surgery was partly abnormal. The plaintiff further argues that the defendant fraudulently concealed facts necessary to establish its negligence. The plaintiff maintains that the defendant knew Millien was not a properly certified technician, it did not assign a remote neuromonitoring physician to oversee her surgery, and her surgeons were not notified of any changes in the neuromonitoring signals despite Dr. Sayegh’s report, yet it concealed these facts from her in order to avoid or limit its liability.
In its reply memorandum, the defendant asserts that the plaintiff knew its identity because she claims she knew " something happened" after her initial surgery and contemplated suing all parties involved. The defendant also argues that the plaintiff has not shown enough evidence to establish fraudulent concealment, and the tolling doctrines do not apply once the plaintiff is aware of an actionable harm.
General Statutes § 52-584 provides in relevant part: " No action to recover damages for injury to the person ... caused by negligence ... 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 ..." When determining whether an action was timely commenced, our Supreme Court has held that an injury occurs when a party suffers some form of actionable harm. See Catz v. Rubenstein, 201 Conn. 39, 45, 513 A.2d 98 (1986).
" 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 ... A breach of duty by the defendant and a causal connection between the defendant’s breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence; they are therefore necessary ingredients for actionable harm ... Furthermore, actionable harm may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another ... In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run; a party need only have suffered some form of actionable harm." (Citations omitted; emphasis added; internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 748-49, 846 A.2d 831 (2004). " The focus is on the plaintiff’s knowledge of facts, rather than on discovery of applicable legal theories." (Internal quotation marks omitted.) Id., 743. The determination of " whether a party’s claim is barred by the statute of limitations is a question of law ... Determining when a plaintiff suffers actionable harm, however, is ordinarily a question of fact." (Citation omitted; internal quotation marks omitted.) Gugliemi v. Willowbrook Condominium Assn, Inc., 151 Conn.App. 806, 810, 96 A.3d 634 (2014).
In Catz v. Rubenstein, supra, 201 Conn. 39, the plaintiff alleged that the defendant failed to diagnose the plaintiff’s decedent’s breast cancer during the period of July 1979, through April 1980. Id., 40-41. The plaintiff’s decedent discovered the metastasis of her cancer from another physician in May 1980, but did not commence a lawsuit until June 1982. Id., 41. The trial court granted the defendant’s motion for summary judgment because the plaintiff’s decedent discovered her injury no later than May 1980. Id., 42. On appeal, the Supreme Court held that, while there was undisputed evidence regarding the dates of her initial examination and subsequent diagnosis, a genuine issue of material fact still existed as to when the plaintiff learned of a causal nexus between her injury and the defendant’s negligence. Id., 44. The Catz court explained that the evidence was insufficient to confirm when the decedent " discovered or in the exercise of reasonable care should have discovered" a causal connection between her injury and the defendant’s negligence in examining, diagnosing and treating her illness. Id., 44.
Similarly, in Jackson v. Tohan, 113 Conn.App. 782, 967 A.2d 634, cert. denied, 292 Conn. 908, 973 A.2d 104 (2009), the trial court had granted the defendant’s motion for summary judgment on the ground that the plaintiff knew she sustained an actionable harm in November 2003, when a physician informed her that someone had " messed up" during her initial surgery. Id., 785. The plaintiff did not commence an action until January 2006. Id. On appeal, the Appellate Court held that although the plaintiff knew she had sustained an injury in November 2003, she was unaware of the defendant’s involvement in her surgery until she obtained her medical records in February 2004, and, therefore, a genuine issue of material fact still existed as to whether the plaintiff had exercised reasonable care in ascertaining the identity of the defendant. Id., 790.
Since Catz and Jackson, trial courts have found that a plaintiff’s awareness of his or her injury, per se, is not enough to confirm notice of a causal connection between the plaintiff’s injury and the defendant’s negligence. See, e.g., McClellan v. William Backus Hospital, Superior Court, judicial district of New London, Docket No. CV-13-6016702-S (October 15, 2014, Cole-Chu, J.); Pallacovitch v. Waterbury Hospital, Superior Court, judicial district of Waterbury, Docket No. CV-12-6013332-S (December 26, 2014, Brazzel- Massaro, J.); Dowd v. Connecticut Children’s Medical Center, Superior Court, judicial district of Hartford, Docket No. CV-11-6026149-S (September 27, 2016, Peck, J.).
In Mahoney v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV-09-5025134-S (August 8, 2011, Bellis, J.), the defendant argued in support of its motion for summary judgment that the action was untimely because the plaintiff knew something went wrong when his treating physician at Bridgeport Hospital informed him about his broken foot in June 2006; yet the plaintiff did not commence an action until May 2009. This court found that a genuine issue of material fact existed because the plaintiff’s awareness of his broken foot, per se, did not place him on notice of a causal connection between his injury and the defendant’s negligence, and denied the defendant’s motion.
The parties agree that the plaintiff suffered an injury on January 25, 2013. As such, the remaining issue before the court is whether the plaintiff knew, or, in the exercise of reasonable care, should have discovered a causal connection between her injury and the defendant’s negligence. Like Mahoney, the defendant in the present action submitted a transcript of the plaintiff’s deposition to show that she knew something went wrong, and yet did not commence an action within the limitations period:
Q: When did you first decide to bring a lawsuit or at least explore the possibility of bringing a lawsuit?
A: When I realized my life was never going to be the same again.
Q: Would that have been at some point while you were still on the eighth floor when you realized that your leg nerve damage was permanent?
A: Probably started thinking about it then.
Q: Okay. And can you estimate for me how long it took you to consult with the first law office from that period of time?
A: I think it was after I did all my rehabilitation, because that was my main focus, was to get myself better.
Q: And when you say that you finished all your rehabilitation, you’ve had several treatments, so I’m just trying to figure out, are you talking about the rehabilitation at Bridgeport Hospital or the VNA or what exactly?
A: I am talking about Bridgeport Hospital, VNA, and then the Rehabilitation Associates.
Q: Rehabilitation Associates, okay.
A: So after I was done with all that.
Q: Okay. So you started to think about bringing a lawsuit at some point while you were still at Bridgeport Hospital rehab, correct?
A: Right ...
The plaintiff’s testimony does not reveal when she knew her surgery required use of intraoperative neuromonitoring. The plaintiff testified that Dr. Opalak never informed her about how her surgery would be performed. Furthermore, during the initial stages of her investigation, the plaintiff only received a copy of Millien’s postsurgical report. Dr. Yingling’s declaration indicates that one of the surgeon’s notes reflected Millien’s report. Upon further investigation, Lifeline’s counsel sent a copy of Dr. Sayegh’s report, and noted that the defendant and Dr. Opalak received a copy, and was unsure why the plaintiff was never provided with one.
In her affidavit, the plaintiff also attests that she was not aware that her initial surgery required use of intraoperative neuromonitoring, or that there were any problems with the neuromonitoring signals. The plaintiff further attests that neither Dr. Brown, Dr. Opalak, nor anyone at Bridgeport Hospital informed her about Dr. Sayegh’s report after her initial surgery, and that she first learned about the use of intraoperative neuromonitoring after her attorneys requested her medical records. She also attests that the defendant did not inform her of any significant changes in the neuromonitoring recordings during her initial surgery, that " she had no reason to suspect [the defendant’s negligence] ... or that its negligen[ce] was related to her injury."
In sum, the foregoing evidence shows that a genuine issue of material fact exists as to when the plaintiff knew of a causal connection between her injury and the defendant’s failure to supervise medical providers of intraoperative neuromonitoring. As such, the plaintiff is entitled to a factual determination as to when she suffered an actionable harm, and the motion must be denied.
CONCLUSION
For the foregoing reasons, the defendant’s motion for summary judgment is denied.