Opinion
Nos. X02-CV-07-6000811-S, X02-CV-07-6000812-S
November 20, 2009
MEMORANDUM OF DECISION RE: DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
I. BACKGROUND
The Plaintiffs filed two separate lawsuits on September 17, 2007, against numerous defendants. In both suits, Plaintiffs claim that the defendants' negligence caused the death of Hazel Smart (hereinafter referred to as the "decedent"). The Plaintiffs claim that on June 11, 2005, the decedent underwent her regularly scheduled dialysis treatment at defendant Gambro's healthcare facility. After completing her dialysis treatment, plaintiff went home, where she began bleeding profusely from the catheter entry site. The decedent was emergently transferred and admitted to St. Mary's Hospital where it was determined that the profuse bleeding was due to a large opening or hole in the arterial limb of the catheter. The decedent died on June 21, 2005, at St. Mary's Hospital as a result of profound blood loss.
The Plaintiffs have made several claims of negligence against the numerous Defendants. Among other claims, they allege that the Defendants ignored the catheter's warning label that it was only to be used for twelve months. It is alleged that this catheter was implanted in the decedent for fourteen months. Further, it is alleged that ointments were applied to the catheter, in violation of the warning label, which resulted in a large hole in the arterial limb of the catheter. This product failure, it is alleged, led to the decedent's massive bleeding and death on June 21, 2005.
Most of the Defendants in both cases are health care providers. Plaintiffs had obtained the ninety-day extension to file the complaints pursuant to C.G.S. Section 52-190a(b). The health care Defendants have now moved for summary judgment on the grounds that the extension should not apply in an ordinary negligence case. They further argue that, even if the extension applies, service was effectuated after the ninety-day period had expired. Plaintiffs argue that the ninety-day extension should apply. They have also moved for permission to amend the Marshal's return with an affidavit which indicates that the Marshall had received the papers two days prior to the time when the extension would expire. The parties argued the matter before the Court on November 18, 2009, at which time the Court reserved decision.
II. DISCUSSION
The Plaintiffs contend that, prior to filing the suit, they were mandated by C.G.S. Section 52-190a to make "a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the [plaintiff's decedent]." Further, C.G.S. Section 52-190a provides that "[i]f the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider . . . the court upon motion or upon its own initiative shall impose upon the person who signed such certificate . . . an appropriate sanction . . . The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney . . . submitted the certificate." The complaints in these cases contained both the good faith certificate and the opinion of a health care provider as required by C.G.S. 52-190a, which states:
(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.
C.G.S. Section 52-184b(a) defines a health care provider as follows:
(a) For the purposes of this section, "health care provider" means any person, corporation, facility or institution licensed by this state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment.
For the purposes of these motions, there is no contest challenging the status of the involved defendants as "health care providers."
On September 4, 2008, the Court, in response to Motions to Dismiss filed by the same health care Defendants, issued a Memorandum of Decision denying the Motions to Dismiss. In its Memorandum, the Court held that the issues raised in this case involve matters of ordinary negligence within the knowledge of potential members of the jury. Therefore, the Court ruled that the case fell within the "common knowledge exception" to medical malpractice cases and, therefore, there was no need for a good faith certificate or doctor's letter in this case. Defendants now base the crux of their motions on the fact that the Court has ruled that this is an ordinary negligence case. Therefore, they argue that the Plaintiffs' should not derive the benefit of C.G.S. 52-190a which allows for a 90-day extension of the statute of limitations, since the Plaintiffs are no longer bound by the requirements of the statute.
Plaintiffs argue that a failure to conduct a good faith inquiry would expose Plaintiff's counsel to sanction by the Court and further disciplinary action by the Grievance committee for ethical violation. The Plaintiffs had no assurances that a judge, after the case was filed, would opine that the "common knowledge exception" applied.
A. Standard of Review
A party moving for summary judgment must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. P.B. Section 17-49. It is not enough for the party moving merely to assert the absence of any disputed factual issue; the moving party is required to bring forward evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute. Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 802-03, 842 A.2d 1134 (2004). Once a party seeking summary judgment has met its burden showing that there is no genuine issue of material fact, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. Ramirez v. Health Net of Northeast, Inc., 285 Conn. 1, 938 A.2d 576 (2008). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Lopes v. Farmer, 286 Conn. 384, 944 A.2d 921 (2008).
B. Medical Malpractice
"The characterization of a claim as ordinary negligence or medical malpractice, therefore, does not turn on whether expert testimony is required." Trimel v. Lawrence Memorial Hosp. Rehab. Ctr., 61 Conn.App. 353, 360, 764 A.2d 203 (2001). This Court's ruling on the Motions to Dismiss did not suggest that a good faith inquiry in the first instance, before suit, is excused. It held that the Plaintiffs' claims were medical malpractice claims of obvious negligence fitting squarely in the "common knowledge exception" to the expert witness requirements governing the standard of proof necessary at trial in a medical malpractice claim; and that therefore the Court believed that neither an opinion letter nor a good faith certificate was required to be appended to the Complaint.
In Barrett v. Montesano, 269 Conn. 787, 797, 849 A.2d 839 (2004), the Supreme Court held that the 90-day extension under subsection (b) applies to statutes of repose as well as statutes of limitations. In so holding, The Supreme Court noted that the whole purpose of subsection (b) was to allow a plaintiff the necessary time to make the reasonable inquiry mandated in subsection (a). A plaintiff's attorney should not be required to have a crystal ball in which to determine whether a court will either require him to have an expert in the future or find that the case falls within the "common knowledge exception." Nor should the decision regarding the applicability of the statute be decided retroactively based upon subsequent rulings of the Court. Likewise, the benefits afforded by the statute's 90-day extension to the statute of limitations should not be abused by attorneys involved in cases that may not involve the treatment of patients, but rather may be fall-down cases on the property of a medical establishment in which a property defect is claimed. See Pueschel v. McLean Foundation, Inc., Superior Court, Judicial District of Hartford at Hartford. Docket No. CV 05 4015053S (April 26, 2007, Miller, J.) "The purpose of [C.G.S. 52-190a] is to inhibit a plaintiff from bringing an inadequately investigated cause of action, whether in tort or in contract, claiming negligence by a health care provider . . . That additional burden to conduct a reasonable inquiry necessitates the additional ninety days in which to do so, which is essential to ameliorate the harsh consequences of the occurrence rule." Barrett v. Montesano, 269 Conn. 787, 796 (2004). Certainly, this rule is not excused when the claim involves the treatment of a patient. In this case the catheter was inserted in the patient. The warnings relate to the care of the catheter while it is in the patient, and the length of time it should be left in the patient. The situation in this case is directly contrary to the instance of a fall in a health care facility where the claim of negligence (i.e. wet floor) does not relate to the treatment of a patient.
In Likier v. Sunrise Senior Services, Inc., Superior Court, Judicial District of New Haven at New Haven. Docket No. CV 06-5008024-S (October 12, 2007, Thompson, J.), the decedent was a resident in a nursing home who gained 15 pounds in one week due to fluid retention. The treating physician prescribed a change in medication and the nursing staff received that information but failed to implement it. The decedent's condition worsened until his family discovered his distress, but the decedent died soon thereafter.
The plaintiffs in Likier sought and received an automatic 90-day extension of the statute of limitations under subsection (b). The plaintiffs then timely filed suit alleging a negligence claim against the defendant for: (1) its failure to make sure the decedent took the correct medications and to respond to his symptoms; and (2) its lack of adequate systems for communicating the decedent's worsening condition to trained nursing or medical staff. The defendant moved to dismiss the complaint due to untimeliness because the plaintiffs' cause of action was in "ordinary" negligence, not medical malpractice, and the plaintiff was not entitled to the 90-day extension of subsection (b). Even though the medical negligence alleged was easily understood, the court held that this was still a matter of medical negligence and that the plaintiff was entitled to the extension. The Court reasoned that "Sunrise was allegedly responsible for making a judgment based on its knowledge of its patients' physical and mental condition. Furthermore, Sunrises was allegedly negligent acts are directly related to its responsibility to monitor the decedent's medical condition. Accordingly, plaintiff was entitled to use the extension of the statute of limitations provided for by Section 52-190a(b)." Id. at 4.
As in Likier, while the negligence alleged may constitute obvious negligence, as this Court has previously found, thereby negating the necessity of expert medical testimony, the 90-day extension of subsection (b) still applies. Ultimately, the Court may rule at trial that expert testimony is not required to prove all, or certain elements of, the negligence claims against the health care providers because some of the claims may fall with the "common knowledge exception"; however, this claim is still a negligence claim involving the care and treatment of Hazel Smart against health care providers as defined in C.G.S. 52-184b(a) for which the tolling period as set forth in C.G.S. 52-190a(b) applies.
C. Marshal's Return
C.G.S. Section 52-593a(a) provides that a statute of limitations will not bar an action where the plaintiff has delivered process to the marshal within the limitations period, and it is served within 30 days of delivery. Subsection (b) of that statute requires that the marshal endorse his return with the date upon which he accepted delivery.
In the present case, Plaintiffs' counsel delivered process to the marshal within two years and ninety days of June 21, 2005; the marshal made service within 30 days of its delivery to him; Marshal Gahan signed affidavits for both actions on the day that the complaints were given to him attesting to the fact that he received them that day; and Marshal Gahan returned these affidavits with his return of service to the office of Plaintiff's counsel. Plaintiff's counsel believes, based upon standard office procedure and a review of the office paper files and computer files, that these affidavits were e-filed with the return of service. The Court's file currently, however, does not contain a copy of the Affidavit of Marshal Gahan attesting to this fact. The Plaintiffs' have filed a Motion for Amendment of Process and/or Return and/or the Court File which if granted, would rectify any defect.
C.G.S. Section 52-72 allows for the amendment of process which is "for any other reason defective." Some Superior Court Judges have allowed similar amendments as the amendments requested in this case. See Zarillo v. Peck, 33 Conn.Sup. 676, 366 A.2d 1165 (1976), and Tayco Corp. v. Wallingford Planning Zoning Commission, Superior Court, Judicial District of New Haven at New Haven, Docket No. CV 06-4017351-S (July 12, 2006, Corradino, J.). Other Superior Court Judges, however, have required a strict construction of the statute and denied the requested amendment. See Kelly-Kroen v. Dock Street Associates, Superior Court, Judicial District of Stamford-Norwalk at Stamford. Docket No. CV 92 0128559 (July 21, 1993, Lewis, J.), and Cronin v. Minnefield et al., Superior Court, Judicial District of Waterbury at Waterbury, Docket No. CV 085008698S (January 16, 2009, Alvord, J.) [ 47 Conn. L. Rptr. 122]. It would appear that the majority of courts, however, have allowed such an amendment. This Court agrees with the reasoning stated in Minney v. Dasent, Superior Court, Judicial District of New London at New London, Docket No. CV06 5000642S (October 23, 2006, Hurley, J.T.R.) [ 42 Conn. L. Rptr. 229], wherein the Court opined:
The requirement that the officer serving process endorse the date of delivery on his return "is not the essence of the thing to be accomplished. The thing to be accomplished is the accurate determination of the date of delivery. The requirement in question relates to a matter of convenience. The provision is designed to secure order, system, and dispatch in the proceedings. It is also a requirement stated in affirmative terms unaccompanied by negative words. For these reasons, the requirement that the date of delivery be endorsed upon the return is directory rather than mandatory. Neither the defendant nor the administration of justice is harmed in any way by the establishment of the date of delivery by means of subsequent affidavits."
Both Section 52-592 and 52-593a are remedial statutes, and are to be liberally interpreted . . . Section 52-593a "does not mandate the written endorsement of the date of delivery of process on the original return. A failure to comply with Section 52-593a(b) is amendable, by affidavit or via an amended return."
Therefore, the Plaintiffs' Motion for Amendment of Process is Granted.
III. CONCLUSION
Based upon the foregoing reasons, the Plaintiffs are entitled to the 90-day extension of the statute of limitations pursuant to C.G.S. Section 52-190a(b). The Court grants the Plaintiffs' Motion to file affidavits and an amended Marshal's Return of Service. Therefore, the Plaintiffs filed the instant actions within the time periods prescribed by the statutes with the applicable tolling periods. Accordingly, Defendants' Motions for Summary Judgment are denied.