Opinion
No. CV03-0519435S
May 5, 2003
MEMORANDUM OF DECISION
This matter is before the court on the defendant's motion for summary judgment filed March 24, 2003 and heard by the court on April 14, 2003. The issue presented is whether an action may be brought and maintained after the expiration of the statute of limitations, General Statutes § 52-584, under the aegis of the accidental failure of suit statute, General Statutes § 52-592, where the prior action was nonsuited on April 22, 2002, pursuant to a motion made on January 17, 2002 for failure to respond to a discovery request and where a motion to reopen, filed on June 4, 2002, was denied on July 15, 2002 after discovery and disclosure had still not been made. The writ in this case was entered on January 30, 2003.
In support of its motion, the defendant filed a memorandum of law and affidavits on March 20, 2002. The plaintiff did not file a memorandum of law in opposition advance of the hearing, but was allowed to file it at the hearing. Both parties made an oral argument. Afterward, the court allowed the plaintiff to address the court's concerns and to supplement his memorandum of law by filing additional exhibits in support of his claim that he failed to comply with the request for production and discovery in the prior action due to mistake, inadvertence, or excusable neglect.
"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.) Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 5, 698 A.2d 795 (1997); Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). "The test is whether a party would be entitled to a directed verdict on the same facts. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990)." (Internal quotation marks omitted.) Beebe v. East Haddam, 48 Conn. App. 60, 64, 708 A.2d 231 (1998). "A motion for summary judgment `is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's CT Page 7034-o claim and involves no triable issue of fact.' Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985)." Beebe v. East Haddam, supra, 48 Conn. App. at 64, 708 A.2d 231. Tirozzi v. Shelby Ins. Co., 50 Conn. App. 680, 71P 9 A.2d 65 (1998).
Both parties agree to, the record reflects and/or the parties stated on the record the following facts. The plaintiff brought an earlier action seeking to recover damage for an injury sustained in an accident which is the subject of this case. The prior case bears docket No. 01-0511566. Nonsuit entered in the prior case as a result of the plaintiff's failure to comply with the defendant's request for discovery and production. The motion for nonsuit was filed on January 17, 2002 and was granted on April 22, 2002 (Berger, J.). On June 4, 2002, the plaintiff filed a motion to reopen the nonsuit. That motion was denied by the court (Berger, P.J.) on July 16, 2002, six weeks later. The order articulated the reasons for the denial as follows: "in as much as this motion does not meet Practice Book § 17-47; it is objected to by the defendant and, despite claims made by the plaintiff, the plaintiff has not complied (with request for discovery and production) after more than seven months, the motion is denied."
Practice Book § 17-47 provides that "Should it appear from the affidavits of a party opposing the motion (to reopen) that such party cannot for reasons stated present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance, permit affidavits to be obtained or discovery to be had for or may make such other orders as is just." That order clearly indicates that the court (Berger, P.J.) afforded the plaintiff a reasonable opportunity to comply with the defendant's request for production and discovery prior to denying his request to reopen the judgment of nonsuit and that the plaintiff still failed to comply. Moreover, it also clearly indicates that the court found that the defendant did present facts essential to justify opposition. It is also important to note that at the time he entered the nonsuit and the order denying the motion to reopen, Judge Berger was the Presiding Judge for the New Britain Judicial District, and as such, bore the primary responsibility for managing the docket for the judicial district.
General Statutes § 52-584 provides "No action to recover damages for injuries to persons . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained." Both the original complaint and the complaint in this case allege that on April 24, 2000, the plaintiff was injured in an automobile accident due to the negligence of the defendant. The injuries, allegedly having been sustained on April 24, 2000, the action must have been brought not later CT Page 7034-p than April 23, 2002. The plaintiff seeks to overcome the bar established by the statute of limitations by bringing this action entered on January 30, 2003 pursuant to General Statutes § 52-592, known as the accidental failure of suit statute.
The accidental failure of suit statute provides in relevant part that: "(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . for any matter of form . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment." That right is not unlimited, however. Our Supreme Court has said:
warranting a broad construction, § 52-592 (a) essentially is remedial in nature. "Deemed a `saving statute, § 52-592 enables plaintiffs to bring anew causes of action despite the expiration of the applicable statute of limitations . . . Although § 52-592 should be broadly construed because of its remedial nature, it should not be construed `so broadly as to hamper a trial court's ability to manage its docket by dismissing cases for appropriate transgressions.'" (Citations omitted.)
Pepitone v. Serman, 69 Conn. App. 614, 619, 794 A.2d 1136 (2002). The conduct must have been the result of mistake, inadvertence, or excusable neglect. Ruddock v. Burrowes, 243 Conn. 569, 706 A.2d 967 (1998).
The plaintiff claims that his failure to respond to the defendant's request for discovery and production was due to mistake, inadvertence, or excusable neglect, but does not describe the mistake, inadvertence or excuse. He claims that while he sought the information he needed to respond from his medical providers and from his employer's workers' compensation carrier, but he was unable to respond because they failed to cooperate.
The plaintiff made the following effort to obtain the medical records. The plaintiff's counsel had his secretary send one letter to each of three medical providers in October of 2000. No further requests of the medical providers were made. At the hearing on the subject motion, the plaintiff's attorney said he did not want to pay for the records. Therefore, sought instead to obtain copies from the workmen's compensation carrier. More than a year after sending the letters to the plaintiff's medical providers, the plaintiff's attorney's secretary sent a form letter to the workmen's compensation claims representative seeking a copy of medical records on December 5, 2001. When she did not get a CT Page 7034-q response, she sent four identical follow-up form letters, one each, on January 24, 2002, March 21, 2002, May 2, 2002 and May 28, 2002. There was no response to any of these letters. On May 28, 2002, plaintiff's counsel sent a form letter seeking copies of medical records to counsel for the workmen's compensation carrier. Although none of the earlier letters elicited the desired response, the plaintiff's counsel's secretary sent another follow-up form letter to the workmen's compensation carrier on January 14, 2003, two weeks prior to filing the present case. At the hearing, plaintiff's counsel stated he still did not have the medical records, but asserted he would have them on a future unspecified date.
The court finds those efforts lacking and the plaintiff has failed to state what mistake, inadvertence or excuse prevented him from obtaining and disclosing the records, leaving the court to conclude that the records were not obtained because the plaintiff simply refused to pay for them.
In this state, as in most states, patients have rights prescribed by law, to obtain their medical records. In this state:
[i]n connection with any litigation related to hospitalization, or at any time following discharge from the facility, any patient or his or her attorney shall have the right, upon written request, to inspect all of such patient's hospital records, and to make copies thereof . . . Any patient aggrieved by a facility's refusal to disclose under this subsection may petition the Superior Court for relief in the same manner as a patient proceeding under section 4-105 . . .
General Statutes § 17a-548. In addition the law provides that:
[u]pon a written request of a patient, his attorney or authorized representative, or pursuant to a written authorization, a provider, except as provided in section 4-194, shall furnish to the person making such request a copy of the patient's health record, including but not limited to, bills, x-rays and copies of laboratory reports . . . given within the preceding three months or such longer period of time as determined by the provider but no longer than six months, records of prescriptions and other technical information used in assessing the patient's health condition. No provider shall charge more than forty-five cents per page . . . and the cost of first class postage, if applicable, for furnishing a health record pursuant to this subsection, except provider may charge a patient the amount necessary to cover the cost of materials for furnishing a copy of an x-ray, provided no such charge shall be made for furnishing a health record or part thereof to a patient, his attorney or authorized representative if the record or part CT Page 7034-r thereof is necessary for the purpose of supporting a claim or appeal . . . A provider shall furnish a health record requested pursuant to this section within thirty days of the request.
General Statutes § 7-194 does not apply as it pertains to state and municipal boards, departments and officers and not private medical providers.
General Statutes § 20-7c (b). The plaintiff did not assert his rights under the statute to obtain his records for a fee.
Our appellate court found that a plaintiff's failure to revise his complaint and respond to discovery constituted excusable neglect, and thus, he was not precluded from bringing new action pursuant to accidental failure of suit statute where the plaintiff failed to respond timely to the request to revise and to discovery demands, due, in part, to mis-communication with counsel out of state, the failure to respond to the discovery request occurred in a time span of six months, and he asserted that he was prepared to comply with all requests. Stevenson v. Peerless Industries, Inc., 72 Conn. App. 601 (2002). This case is distinguishable from Stevenson, supra. There was no obstacle to timely compliance in this case. The plaintiff simply failed to use the tools at his disposal, preferring instead to avoid the expense. In addition, the plaintiff is still unable to comply and despite his claim that he will be able to comply some time in the unspecified future, the fact that he is using the same method to obtain the records which failed in the past, the court is not persuaded that lie will be successful.
The statute permitting refiling of suit following accidental failure of suit is designed to prevent a miscarriage of justice if a plaintiff fails to get a proper day in court due to the statutorily enumerated procedural problems, and is not a device for avoiding rules of res judicata. General Statutes § 52-592 (a). Legassey v. Shulansky, 28 Conn. App. 653, 611 A.2d 930 (1992). There is not miscarriage of justice here, simply an adherence to the established rules of procedures.
Although the accidental failure of suit statute should be broadly construed because of its remedial nature, it should not be construed so broadly as to hamper a trial court's ability to manage its docket by dismissing cases for appropriate transgressions. The court must balance the need for case management and to that end parties' adherence to the rules of practice against considerations of fairness in cases where parties are prevented by such things as mistake, inadvertence, excusable mistake or as claimed in this case, impossibility from adhering to those rules. Ruddock v. Brown, 243 Conn. 569, 706 A.2d 967 (1998).
Thus, where a case was dismissed for dormancy in 1997, and again in 1999, for failure to close the pleadings, the plaintiff who did not explain his conduct could not avail himself of the accidental failure of CT Page 7034-s suit statute, even though the statute is remedial and should be broadly construed, because it should not be so broadly as to hamper the court's ability to manage its docket. Pepitone v. Serman, 69 Conn. App. 614, 794 A.2d 1136. The plaintiff in this case was given two opportunities and more than seven months to comply with discovery. Even now, the plaintiff is unable to comply and unable to explain his conduct of failing to be more diligent in attempting to secure the medical records and comply with the discovery rules.
The accidental failure of suit was passed to avoid the hardships arising from an unbending enforcement of limitation statutes and the extension of time provided thereby applies to all cases, where a suit seasonably begun has failed for one or more of the causes stated. Gallo v. G. Fox Co., 148 Conn. 327, 170 A.2d 724 (1961). Denial of use of the accidental failure of suit statute in this case is not an unbending enforcement of the statute of limitations, but rather a fair application of the rules of practice and reasonable management of the court's docket, particularly in light of Judge Berger's order denying the motion to reopen the case and the plaintiff's continuing inability to comply with standard discovery.
The defendant's motion for summary judgment is granted.
BY THE COURT
Hon. Venessa L. Bryant, P.J.