Opinion
Nos. X06 CV 07 5007185 S, X06 CV 08 5011032 S
January 27, 2010
MEMORANDUM OF DECISION ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (#214 AND #109)
STATEMENT OF THE CASE
In March 2007, Dr. Stanley Saperstein and his wife, Eleanor Saperstein, commenced an action against Danbury Hospital and Dr. Beatrice Cuello. In August 2007, Dr. Saperstein died of esophageal cancer. In March 2008, the complaint was revised to reflect that Eleanor Saperstein was prosecuting the lawsuit individually and as executrix of Dr. Saperstein's estate.
In June 2008, Eleanor Saperstein, individually and as executrix of Dr. Saperstein's estate, filed a second action against Danbury Office of Physician Services. During the relevant time period, Danbury Office of Physician Services employed the defendant Dr. Cuello and had an agreement with Danbury Hospital to provide pathology services.
In both actions, Eleanor Saperstein, in her individual capacity for loss of consortium and as executrix of Dr. Saperstein's estate, alleges that the defendants committed medical malpractice by failing to diagnosis properly a biopsy taken of Dr. Saperstein's esophagus in August 1999. She claims that the defendants' negligence caused economic and non-economic damages and ultimately resulted in Dr. Saperstein's death.
The defendants in both actions have moved for summary judgment, contending that the complaints are barred by the General Statutes § 52-584 three-year repose and the General Statutes § 52-555 five-year repose. In response, the plaintiff asserts, among other things, that the limitation periods were tolled by the continuing course of conduct doctrine. The court concludes that material issues of disputed fact exist precluding summary disposition.
Sec. 52-584. Limitation of action for injury to person or property caused by negligence, misconduct or malpractice.
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, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.
Sec. 52-555. Actions for injuries resulting in death.
(a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of.
The facts pertinent to the motions for summary judgment are as follows. In or about August 1999, Dr. George Cohen, a gastroenterologist, performed an endoscopy on Dr. Saperstein. During the procedure, Dr. Cohen removed a tissue sample from Dr. Saperstein's esophagus and sent it to the defendant Danbury Hospital Department of Pathology Laboratory Medicine for examination. Three slides were prepared from the tissue specimen representing different layers of the mucosal lining of the esophagus. The slides were individually identified as 1-1, 1-2 and 1-3. On August 19, 1999, the defendant Dr. Cuello, a pathologist employed by the defendant Danbury Office of Physician Services, reportedly examined the esophageal specimen. A resident physician employed by Danbury Hospital, Dr. Hossein A. Alavi, was assigned to Dr. Cuello that day. Dr. Alavi's initials appear in three places on the pathology report. Dr. Cuello's signature was added electronically. In the pathology report, Dr. Cuello reported her findings as "esophagus, biopsy: reflux esophagitis." Dr. Cuello sent the pathology report to Dr. Cohen and had no further involvement in Dr. Saperstein's care. As a result of the diagnosis of reflux esophagitis, a relatively benign condition, Dr. Cohen did not provide any further treatment to Dr. Saperstein until his symptoms changed in 2005.
In or about November 2005, Dr. Saperstein was experiencing difficulty swallowing. On December 19, 2005, Dr. Cohen performed another endoscopy and biopsy. The tissue specimen of this biopsy was sent to Pathology Partners in Irving, Texas, for analysis. The pathology report of this analysis indicated "invasive poorly differentiated adenocarcinoma, with signet cell features." The parties agree that as a result of this December 2005 report, Dr. Saperstein discovered that he had cancer.
Before the end of that month, Saperstein contacted Danbury Hospital to obtain the slides created from the 1999 biopsy in order to facilitate the commencement of his cancer treatment. Dr. Frank Braza reviewed these slides before releasing them to Dr. Saperstein. At the time, Dr. Braza was the Vice Chairman of the Pathology Department at Danbury Hospital and the Director of the Anatomic Pathology Division. Dr. Braza interpreted the slides as showing neoplastic glands, a finding evidencing the existence of cancer. Dr. Braza showed the slides to Dr. Steven Sieber (the current Vice Chairman of the Pathology Department at Danbury Hospital and Director of the Anatomic Pathology Division). Dr. Sieber agreed that high grade dysplasia was evidenced on at least one of the slides. Dr. Braza also notified Dr. Ramon Kranwinkel, the Chairman of the Pathology Department. Dr. Kranwinkel also reviewed one or more of the slides and agreed with the finding of dysplasia.
On December 30, 2005, Dr. Saperstein went to Danbury Hospital to take possession of the slides. On this date, Dr. Braza informed Dr. Saperstein that the slides indicated the existence of neoplastic glands and that this finding was not reflected in Dr. Cuello's 1999 report. Dr. Saperstein left Dr. Braza's office with two of the three slides (slides 1-2 and 1-3) and a copy of the 1999 pathology report. In February 2006, Dr. Braza informed Dr. Cuello about his review of the slides, his finding that the slides evidenced neoplastic glands and his conversation with Dr. Saperstein. As a result, Dr. Cuello reexamined one of the August 1999 slides (slide 1-1), and in March 2006, she signed and issued an amended pathology report reflecting a finding of glandular dysplasia in addition to reflux esophagitis.
The court notes that although Dr. Cuello appears to indicate in her deposition testimony that she reviewed all three slides in 2006, her affidavit attached to the memorandum in support of the motion for summary judgment filed on September 2, 2008 (tab 4) indicates that she reviewed only one slide in 2006, slide 1-1.
The complaints against the defendants allege that the pathology report should have reflected the findings of glandular dysplasia when the slides were reviewed in August 1999. The complaints further allege that if Dr. Saperstein had been informed about the condition in 1999 and had received treatment at the stage of the condition as it existed then, the progression of the cancer and Dr. Saperstein's death would have been averted.
DISCUSSION I
Contrary to the rules of practice, the plaintiff's complaints do not identify General Statutes § 52-555 and they do not separate the ante-mortem and post-mortem claims into separate counts. See Practice Book §§ 10-3, 10-26. In any event, the record is clear that the plaintiff's post-mortem claims are for wrongful death.
The law is well established that wrongful death is a statutory right of action under General Statutes § 52-555 that did not exist at common law. Ecker v. West Hartford, 205 Conn. 219, 530 A.2d 1056 (1987); Foran v. Carangelo, 153 Conn. 356, 216 A.2d 638 (1966). Consequently, because the executrix's claims in both actions are divided into ante-mortem and post-mortem claims, the statute of repose for the former appears to be governed by General Statutes § 52-584 and the statute of repose for the latter appears to be governed by General Statutes § 52-555. See Doucette v. Bouchard, 28 Conn.Sup. 460, 265 A.2d 618 (1970). The significance of this distinction is twofold. First, the limitation period of General Statutes § 52-555 is jurisdictional. Ecker v. West Hartford, supra, 205 Conn. 219. As a jurisdictional condition of the cause of action, the plaintiff bears the burden of showing that the wrongful death claims were instituted within the limitation period of the statute. See generally Fink v. Golenbock, 238 Conn. 183, 199, 680 A.2d 1243 (1996) ("The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised").
Second, a motion for summary judgment raising an issue of subject matter jurisdiction should be treated as a motion to dismiss under Practice Book § 10-31(a). See Bellman v. West Hartford, 96 Conn.App. 387, 900 A.2d 82 (2006); accord Lewis v. Chelsea G.C.A. Realty Partnership, 86 Conn.App. 596, 607, 862 A.2d 368 (2004), cert. denied, 273 Conn. 909, 870 A.2d 1079 (2005) (form of judgment for lack of subject matter jurisdiction raised through summary judgment motion should be judgment of dismissal). Although these differences between the plaintiff's ante-mortem and post-mortem claims have procedural significance, as discussed below, the ultimate disposition of the defendants' motions remain the same.
Practice Book § 10-31(a) provides in relevant part: "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . . This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record."
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . ." (Citations omitted; internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
A motion for summary judgment will be granted 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. Practice Book § 17-49. The moving party has the burden of showing the absence of any genuine issue of material fact and therefore a right to summary judgment. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). "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 Insurance Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . ." (Citations omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "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] . . ." (Citation omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 47, 881 A.2d 194 (2005). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . ." (Citations omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003).
A party moving for summary judgment may assume the truth of certain facts solely for the purpose of the motion and on this basis argue that it is entitled to judgment as a matter of law. Alternatively, a movant may concede that certain facts are in dispute, but maintain that these facts are immaterial. See Practice Book § 17-49 (summary judgment shall be rendered when the proof shows 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"). (Emphasis added.) The defendants have presented their motions for summary judgment in this manner. For example, although the defendants do not concede a breach of the standard of care, for the purpose of their motions for summary judgment, they assume arguendo that a misdiagnosis was made in the 1999 pathology report, but insist that the plaintiff's claims based on any such misdiagnosis are barred by the applicable statutes of repose.
II
As previously stated, the defendants seek judgment in their favor on the ground that the plaintiff's actions were not instituted within the time periods of the controlling statutes of repose. More specifically, the defendants argue that the plaintiff's complaints filed in 2007 and 2008 allege that Dr. Cuello committed a wrongful act by failing to read properly the pathology slides. This alleged wrongful act occurred in August 1999, indicating that these actions were instituted beyond the three-year limitation period of General Statutes § 52-584 and the five-year limitation period of General Statutes § 52-555. In fact, the plaintiff concedes that both actions were instituted more than five years beyond the date of the misdiagnosis made in August 1999, but contends that the continuing course of conduct doctrine applies to suspend the running of these time limitations.
The court rejects the plaintiff's argument that the limitation periods of General Statutes § 52-584 and § 52-555 did not start to run in August 1999, but began to run in 2006 when Dr. Cuello was advised about the error and amended the pathology report. Plaintiff's Objection to Motion for Summary Judgment of Cuello and Danbury Hospital, dated November 5, 2008, p. 23. Such an argument is contrary to the plain and unambiguous language of these statutes. There is no legal basis for the plaintiff's position that the time limitations of these statutes of repose commence when a defendant learns of the wrongful act and reports it, as compared to when the wrongful act occurs as explicitly provided in the language of the statutes. McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 334, 471 A.2d 646 (1984) (the statutes of repose of § 52-584 and § 52-555 begin "to run from the date of the negligent act"); see also Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994) ("In the medical malpractice context, we have specifically determined that a lawsuit commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations, 52-584, regardless of whether the plaintiff had not or, in the exercise of care, could not reasonably have discovered the nature of the injuries within that time period").
In support of the claim that Dr. Cuello breached a continuing duty, the plaintiff places particular emphasis on the allegations of the complaints that Cuello failed: "to properly perform a complete and accurate analysis/examination of his 1999 biopsy; " "to properly report the findings on his 1999 biopsy; " and "to inform him that she had not conducted a complete and accurate analysis/examination of his 1999 biopsy." Plaintiff's Objection to Motion for Summary Judgment of Cuello and Danbury Hospital, dated November 5, 2008, pp. 18-19.
In its modern formulation, we have held that 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. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . Where we have 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 . . . The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied.
(Citations omitted; emphasis in original; internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 201-02, 905 A.2d 1135 (2006).
The defendants contend that the continuing course of conduct doctrine is inapplicable to extend the statutes of repose because, under the circumstances of this case, no "continuing duty" was owed to Dr. Saperstein. "The existence of a ditty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998).
The defendants also argue that the continuing course of conduct doctrine is inapplicable in this case because no "special relationship" existed between any of the defendants and Dr. Saperstein. The court concludes that the existence of a "special relationship" necessary for the application of the continuing course of conduct doctrine presents a disputed factual issue not amenable to disposition through the defendants' motions. As discussed above, the defendants argue alternatively that assuming arguendo that a "special relationship" existed, the plaintiff has not identified a "continuing duty" necessary for the application of the continuing course of conduct doctrine.
To support the contention that Dr. Cuello breached a "continuing duty," the plaintiff has proffered circumstantial evidence and affidavits of an expert, Dr. Steven Hajdu, to make two distinct, alternative arguments. The plaintiff first posits that in 1999 Dr. Cuello did not review any of the slides or only reviewed slide 1-1. Relying on Dr. Hajdu's affidavit, the plaintiff claims that slides 1-2 and 1-3 evidence dysplasia and that slide 1-1 does not. According to the plaintiff, Dr. Alavi, not Dr. Cuello, reviewed the slides, and as a consequence, Dr. Cuello had a continuing duty to review the slides. Alternatively, the plaintiff argues that if Dr. Cuello reviewed the slides as she contends, the evidence of high grade dysplasia was so plain and obvious that she "must have known" that Dr. Saperstein's condition posed serious health risks implicating a continuing duty to warn or advise. The court will separately address these alternative contentions advanced by the plaintiff.
The plaintiff's circumstantial evidence that Dr. Cuello did not review the slides in 1999 is contested by Cuello's affidavit attached to the memorandum in support of the motion for summary judgment filed on September 2, 2008, at tab 4. In this affidavit, Dr. Cuello attests that in 1999 she examined the three slides containing the tissue specimens of Dr. Saperstein's esophagus. Thus, a factual dispute exists about whether Dr. Cuello in fact reviewed the slides in 1999. The defendants argue that this dispute is not material and does not preclude summary disposition because even if the facts are as the plaintiff contends, the statutes of repose nevertheless have run. As previously explained, a party seeking summary judgment may concede that certain facts are in dispute, but maintain that these facts are immaterial. See generally Practice Book § 17-49.
A
The Appellate Court's decision in Golden v. Johnson Memorial Hospital, Inc., 66 Conn.App. 518, 785 A.2d 234, cert. Denied, 259 Conn. 902, 789 A.2d 990 (2001) controls the disposition of the plaintiff's first argument. In Golden, a pathologist reviewed a tissue sample and issued a report indicating that there was no evidence of a malignancy. The patient was later diagnosed with cancer. As part of the patient's treatment, a second pathologist reviewed the earlier slides and concluded that they revealed the presence of cancer. Subsequently, a corrected pathology report was issued. The plaintiff instituted suit within six months after the corrected report, but more than twelve years after the original diagnosis. The defendants moved for summary judgment, arguing that the General Statutes § 52-584 repose period had passed. In response, the plaintiff argued that the statute of repose was extended by the continuing course of conduct doctrine. The trial court's decision granting the defendants' motion for summary judgment was affirmed on appeal. In rejecting the plaintiff's argument that the repose period was tolled because the defendants owed him a continuing duty from the time of the original misdiagnosis until the issuance of the corrected report, the Appellate Court explained that as a matter of law, a continuing duty did not exist under circumstances where the defendants had no knowledge of the misdiagnosis and where there was no continuing treatment relationship:
We conclude that, as a matter of law, to expect a pathology group to provide follow-up treatment or to instruct a patient on follow-up care after a negative diagnosis when there is no awareness that the diagnosis is wrong and there is no ongoing relationship is beyond the expectation of public policy. The plaintiff fails to establish justification necessary to support recognition of a legal duty on the part of Associates to provide him with follow-up treatment or instruction on follow-up care where there is a misdiagnosis of which Associates was unaware. The plaintiff fails to cite any case in which a pathologist in those circumstances, as a matter of law, was found to have a duty to provide follow-up treatment to a patient or to instruct a patient on follow-up care.
Id., 66 Conn.App. 529-30.
Similarly, in the present case, Dr. Cuello has attested that she read all three slides in 1999, and thereafter, had no further involvement with Dr. Saperstein's medical care. Dr. Cuello maintains that Dr. Braza informed her in February 2006 about her questioned diagnosis. Consequently, on the basis of these facts, the defendants insist that Golden requires the granting of their motions for summary judgment.
In response, the plaintiff argues that Golden is distinguishable because Golden was a "misdiagnosis" case. The plaintiff contends that her case is not about a misdiagnosis; according to the plaintiff, her complaints involve a "failure to diagnose." To clarify the plaintiff contends that the presence of the neoplastic glands was so clearly plain and obvious that Dr. Cuello must not have reviewed the slides in 1999, but instead, she negligently relied on Dr. Alavi's interpretation without checking his evaluation. Based on this contention, the plaintiff argues that her complaints allege a failure to make a diagnosis because Dr. Cuello, as the attending pathologist signing the pathology report, had an independent duty to review the slides. Dr. Cuello failed to satisfy this duty in 1999 when she did not review the slides herself, and thereafter, this unfulfilled duty operated to toll the statutes of repose. The plaintiff succinctly summarizes this position as follows: "If Cuello never read Dr. Saperstein's pathology slides in August 1999, that failure continued until such time as it was discovered. Cuello's continuing failures in this regard toll the commencement of the [statutes of repose], and thus, the plaintiff's action was timely filed." Supplemental Objection to Defendants' Motion for Summary Judgment, filed May 18, 2009, p. 6. The court is unpersuaded.
To illustrate the continuing nature of Dr. Cuello's duty, the plaintiff emphasizes pointedly that Dr. Cuello to date has not satisfied her duty to review all of the slides because she only reviewed one of the three 1999 slides when she prepared the amended pathology report. Plaintiff's Objection to Motion for Summary Judgment of Cuello and Danbury Hospital, filed on November 5, 2008, p. 22. This point, however, does not actually provide any material assistance to the court's consideration of the application of the continuing course of conduct doctrine because the doctrine does not apply after the plaintiff discovers the harm, and there is no dispute that Dr. Saperstein became aware of the alleged misdiagnosis in December 2005. Rosato v. Mascardo, supra, 82 Conn.App. 405. ("the continuing course of conduct doctrine has no application after the plaintiff has discovered harm.")
Assuming the truth of the plaintiff's contention that Dr. Cuello failed to review the slides and make a diagnosis, the plaintiff nevertheless has failed to establish the existence of a "continuing duty" necessary to toll the statutes of repose as that doctrine has been recognized and applied in medical malpractice cases under existing case law. The plaintiff cites no applicable or controlling authority to support her position. Morever, her argument cannot be squared with the holding of Golden v. Johnson Memorial Hospital, Inc., supra, 66 Conn.App. 529, which, as previously discussed, explains that when there is no ongoing doctor-patient relationship, the linchpin of the existence of a continuing duty relies on proof of actual knowledge of the medical risk or condition. Indeed, Golden's holding has been expressed consistently and repeatedly in a line of Supreme Court cases.
[W]e disagree with the premise that a physician who has performed a misdiagnosis has a continuing duty to correct that diagnosis in the absence of proof that he subsequently learned that his diagnosis was incorrect . . . To apply such a doctrine to a medical misdiagnosis would, in effect, render the repose part of the statute of limitations a nullity in any case of misdiagnosis. We do not think that the language or policy of the statute permits such a reading.Blanchette v. Barrett, 229 Conn. 256, 284, 640 A.2d 74 (1994). (Emphasis added.)
[A] continuing duty must rest on the factual bedrock of actual knowledge . . . In particular, we have noted that we disagree with the premise that a physician who has performed a misdiagnosis has a continuing duty to correct that diagnosis in the absence of proof that he subsequently learned that his diagnosis was incorrect.
(Citations omitted; emphasis added; internal quotation marks omitted.) Neuhaus v. Decholnoky, supra, 280 Conn. 203-04.
Thus, the heightened `actual knowledge' requirement reflects the fact that, although a defendant's ongoing failure to warn of or properly diagnose a plaintiff's medical condition may be wrongful, the legislature has made a clear public policy choice that, after the lapse of a reasonable time, defendants in medical malpractice cases should be able to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability. In the absence of any evidence indicating the defendant's actual knowledge of the need for further warning, treatment or monitoring of the plaintiff's condition, therefore, we have declined to frustrate that valid policy choice by imposing a continuing duty on the defendant, and thereby tolling the statute of limitations.
(Citations omitted; emphasis added; internal quotation marks omitted.) Martinelli v. Fusi, 290 Conn. 347, 360-61, 963 A.2d 640 (2009).
The plaintiff's argument that Dr. Cuello failed to make a diagnosis does not fall within the ambit of this appellate precedent because the argument does not involve any claim or proof that this failure revealed actual knowledge of a "medical risk or condition that require[d] further treatment, monitoring or warnings." Martinelli v. Fusi, supra, 290 Conn. 262 n. 8. As previously discussed, the evidence, viewed favorably to this particular argument advanced by the plaintiff, is that Dr. Cuello did not look at the slides, was unaware of the evidence of the dysplasia and only became aware of this evidence in 2006 when she was informed about it by Dr. Braza.
Moreover, for purposes of the continuing course of conduct doctrine, the difference between a negligent failure to diagnose and a negligent misdiagnosis is without any legal significance because the application of the doctrine does not turn on whether the wrongful act is one of commission or omission. See generally Neuhaus v. Decholnoky, supra, 280 Conn. 203 ("When determining whether tolling under the continuous course of conduct doctrine is permissible, we repeatedly have held, in the medical treatment context, that continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct"). Despite the creativeness of the plaintiff's theory of liability, the gravamen of the plaintiff's complaint unequivocally remains the failure by the defendant doctor to make a correct diagnosis. Stated differently, the crux of the plaintiff's complaint is not premised on a mere failure to review the slides, but on the failure to review the slides and report the correct findings in the pathology report. Thus, analyzing the plaintiff's position fully and fairly, the plaintiff's claim that Dr. Cuello did not review the slides merely reflects an alternative specification or allegation of negligence indicating how the proper diagnosis was not achieved. Rather than presenting an error based on a deficient review of the slides, the plaintiff claims that an incorrect diagnosis occurred because the slides were not reviewed. As to the application of the continuing course of conduct doctrine, Dr. Cuello's duty to read the slides and correctly report her findings was no different from the duty of the pathologist in Golden, and as held in Golden, the plaintiff's allegations are insufficient as a matter of law to accomplish an extension of the limitation periods.
See also Neuhaus v. Decholnoky, supra, 280 Conn. 210: "In short, when recognizing a continuing duty to warn, the key is not whether a physician's action is labeled as a diagnosis or a prognosis, but whether a physician has actual knowledge that he or she may have improperly advised the patient." (Emphasis in original.)
In short, absent any claim that Dr. Cuello knew that a misdiagnosis was made or that she had a continuing relationship or involvement with the patient, Dr. Cuello's failure in 1999 to report evidence of dysplasia was an insular act, complete when it occurred, and not an act of a continuing nature sufficient to toll the statutes of repose. Cf. Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 609, 894 A.2d 335 (2006), aff'd, 284 Conn. 193, 931 A.2d 916 (2007) ("Although it may be true that the defendant never was released of its contractual and statutory obligations to provide a release of mortgage once the debt was satisfied, its failure to provide the appropriate release constituted a single omission and not an ongoing or recurring wrongful act").
This conclusion is not to suggest that Dr. Cuello did not have an initial duty to read the slides and accurately evaluate them consistent with the standard of care. The point is that there is a legally significant difference between an initial duty and a continuing duty, and the existence of the latter in particular must be guided by and cannot be divorced from the underlying purposes of the repose statutes. More specifically, the general rule is that a determination of the existence of a duty involves a consideration of issues concerning foreseeability and policy. Thus, in evaluating whether a continuing duty exists that extends a statute of repose, emphasis is placed on the legislative policies underpinning the statute. Indeed, the plaintiff's argument that the statute of repose does not apply to a case where a pathologist "fails to make" a diagnosis is an effort to reject or avoid the very concerns articulated by our Supreme Court in emphasizing the significance of the actual knowledge requirement in cases such as this one. The Supreme Court has expressed these policy issues as follows:
"We have stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case. The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Golden v. Johnson Memorial Hospital, Inc., supra, 66 Conn.App. 526-27.
The plaintiff's dissatisfaction with this well-established appellate court precedent is very clearly expressed: "[T]he plaintiff does take issue with the basic `premise' enunciated in [ Blanchette v. Barrett, supra, 229 Conn. 284], and reiterated thereafter, that there can be no continuing duty to warn of a misdiagnosis . . . of which a defendant is unaware. In other words, the plaintiff disputes that a continuing duty to warn `must rest on the bedrock of actual knowledge' . . . [W]ho could dispute that the law imposes upon a defendant the duty to warn of a particular harm under circumstances in which he should know of danger . . ." (Citation omitted; emphasis in original.) Plaintiff's Objection to Motion for Summary Judgment of Cuello and Danbury Hospital, supra, pp. 23-24. Thus, the plaintiff's position is that a doctor has a continuing duty to warn about a misdiagnosis when the doctor "should" have knowledge of the misdiagnosis, even when no ongoing relationship exists and when there is no evidence of any actual knowledge of the misdiagnosis. This position is directly at odds with the previously discussed Supreme Court holdings in Neuhaus v. Decholnoky, supra, 280 Conn. 203-04, 213-14 and Blanchette v. Barrett, supra, 229 Conn. 284. Accord Martinelli v. Fusi, 290 Conn. 363 ("[O]ur courts have refused to impose a continuing duty on the defendant when the only evidence demonstrating his or her actual knowledge is in the form of expert testimony that the defendant should have been aware of the facts or that he or she deviated from the standard of care"). The court's response to the plaintiff's position is that this court is not free to disregard the pronouncements of the Supreme Court. The plaintiff may pursue her positions on appeal when and if the opportunity presents itself.
Furthermore, the [defendant] correctly points out that the application of the continuing course of conduct doctrine in this context, which essentially implies an application of the doctrine to any failure to warn claim regardless of the actual knowledge possessed by the defendant, effectively would nullify the repose portion of the statute of limitations contained in § 52-584. The purpose of a statute of limitation or of repose is to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise . . . This timing restriction with respect to claims of malpractice against a health care provider represents a valid policy choice by the legislature that should be respected in all but the most exceptional circumstances . . . because any tolling of the statute of limitations may compromise the goals of the statute itself . . .
(Citations omitted; internal quotation marks omitted.) Neuhaus v. Decholnoky, supra, 280 Conn. 206-07.
The court appreciates that the application of this appellate precedent may mean that certain malpractice claims, including those involving serious injuries or even death as in the present case, may be time barred and precluded from seeking legal redress. Such a result, however, is the consequence of the statutes of repose and the policy considerations on which they are based.
While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree . . . The statute of limitations and repose sections are a way of implementing the public policy of limiting the legal consequences of wrongs to a controllable degree.
(Citations omitted; internal quotation marks omitted). Golden v. Johnson Memorial Hospital, Inc., supra, 66 Conn.App. 527-28.
B
The plaintiff's alternative argument is that the defendants' motions for summary judgment should be denied because a material factual dispute exists as to whether Dr. Cuello had actual knowledge in 1999 that Dr. Saperstein's condition posed serious health risks. More specifically, the plaintiff argues that if Dr. Cuello reviewed the slides in 1999 as she contends, then under these particular circumstances, she must have observed and appreciated the plain and obvious evidence of glandular dysplasia exhibited on the slides. The plaintiff supports this contention by relying on a supplemental expert affidavit of Dr. Steven Hajdu. In this affidavit, Dr. Hajdu states the following:
It is my opinion that the facts of this case are so egregious that, if Dr. Cuello actually examined Dr. Saperstein's 1999 pathology slides in August 1999, then no reasonable board-certified pathologist in Dr. Cuello's position could have failed to see the evidence of high grade dysplasia clearly evident there, and therefore, Dr. Cuello must have known that Dr. Saperstein's condition posed a serious medical risk.
In addition, if Dr. Cuello examined any of Dr. Saperstein's 1999 pathology slides in August 1999, then no reasonable board-certified pathologist in Dr. Cuello's position could have failed to see glandular changes, including Barrett's esophagus, clearly evident there and, further, no reasonable board-certified pathologist would have indicated only "Reflux Esophagitis" in his or her pathology report.
Affidavit of Steven I. Hajdu, dated May 15, 2009, attached to the Supplemental Objection to Defendants' Motion for Summary Judgment, filed on May 18, 2009, at tab 16.
The court also notes the following statements made by Dr. Cuello during her deposition:
Q. The two to three small glands of dysplasia that you mentioned that you observed in 2006, did you look at that same portion, same specimen in 1999?
A. Yes.
Q. And did you see that same portion of the specimen that included the two to three small glands of dysplasia?
A. Yes.
Q. Okay. Did you report them differently in 1999?
A. Yes.
Q. How did you report them in 1999?
A. I did not report the dysplasia.
Q. Okay. So is it fair to say that in 1999, you saw those small glands, is that correct?
A. Yes.
Q. But the reporting that you made regarding those glands was incomplete?
A. Yes.
Q. And in what way was it incomplete?
A. Because the dysplasia was not mentioned.
Q. Did you see the dysplasia in 1999?
A. No.
Q. Okay. But it was there to be seen, correct?
A. Yes.
Q. So is it fair to say, Doctor, that you misread the slides in 1999?
A. I did not see the dysplasia.
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Q. So would you agree with Dr. Kranwinkel if he said that you misread the slide in 1999?
A. I guess so.
Objection to Motion for Summary Judgment, filed on November 5, 2008, Exhibit A at A53 (Cuello Deposition), pp. A60-62.
Thus, according to Dr. Cuello's deposition testimony, she reviewed the slides in 1999, saw the glands at issue, but did not see the dysplasia that apparently was there to be seen. In an earlier affidavit, Dr. Hajdu stated that "[t]he findings of high grade dysplasia on slides 1-2 and 1-3 are clearly evident, they are not subtle findings." Objection to Motion for Summary Judgment, filed on November 5, 2008, Exhibit A at A202-A204. Dr. Steven Sieber also states that the high grade dysplasia is "clearly evident" in the 1999 slides. Objection to Motion for Summary Judgment, filed on November 5, 2008, Exhibit A at A131 (Sieber Deposition), p. A160. Dr. Kranwinkel, the Chairman of the Pathology Department, also confirmed the finding of dysplasia. Dr. Braza states that Dr. Saperstein's case is not a "borderline case" and that the misdiagnosis in this situation would be considered a "major error." Objection to Motion for Summary Judgment, filed on November 5, 2008, Exhibit A at A1 (Braza Deposition), pp. A44 and A46.
The court concludes that the totality of the evidence before it on these motions for summary judgment warrants the denial of the motions for summary judgment and a trial of the facts concerning the preparation of the 1999 pathology report, including what Dr. Cuello knew or discovered as part of her purported review of the slides. As previously discussed, when a court is asked to apply the continuing course of conduct doctrine under circumstances such as those presented here, our Supreme Court has expressed the importance of the requirement that a medical provider have actual knowledge of the need to provide further treatment or monitoring of a patient's condition. Martinelli v. Fusi, 290 Conn. 359-61. The Supreme Court has emphasized that this requirement is important in order to avoid undermining the legislative policy choice evidenced by the statutes of repose and to respect this policy decision in all but the most exceptional circumstances. Neuhaus v. Decholnoky, supra, 280 Conn. 207. Consequently, the Supreme Court also has noted that it has repeatedly refused "to impose a continuing duty on the defendant when the only evidence demonstrating his or her actual knowledge is in the form of expert testimony that the defendant should have been aware of the facts or that he or she deviated from the standard of care." (Emphasis in original.) Martinelli v. Fusi, 290 Conn. 363. The court has further explained and qualified these principles as follows:
[W]e emphasize that our conclusion that a plaintiff may not rely exclusively on objective expert evidence to establish the defendant's actual knowledge will not necessitate the existence of smoking gun evidence in all cases. Indeed, there may well be circumstances in which the facts of the case are so egregious that an expert would be willing to testify that no reasonable physician in the defendant's position could have lacked such knowledge, and, therefore, that the defendant must have known that the plaintiff's condition posed a serious medical risk. Such testimony properly may put into question the credibility of the defendant's self-serving statements to the contrary, and thereby create a genuine issue of material fact that the defendant owed a continuing duty to treat the plaintiff's condition.
Martinelli v. Fusi, supra, 290 Conn. 364 n. 12.
The present record appears to present the exceptional case where the facts may be so egregious that Dr. Cuello's statements denying knowledge of the condition and the risks to the patient require a jury's consideration of the facts pertaining to the application of the continuing course of conduct doctrine. As compared to the expert opinions in Martinelli, the plaintiff's expert is not limiting his opinion to the belief that Dr. Cuello merely deviated from the standard of care. He also opines that the high grade dysplasia was evidenced so clearly in the slides that Dr. Cuello must have seen and appreciated the findings of the condition. The clear and apparent nature of the findings are supported by the other pathologists who reviewed the slides. Additionally, Dr. Cuello's own deposition testimony raises some ambiguity on this issue, particularly in her explanation about what she did in 1999 as compared to her later review in 2006. In her affidavit and deposition testimony, Dr. Cuello states that she reviewed all three slides in 1999 and did not see the dysplasia, but she does not explain how she missed this finding in 1999 when she did this review. There is no dispute that in 2006 she reviewed one of the slides (slide 1-1) and amended her report to reflect a finding of dysplasia, but the plaintiff has offered evidence that the slide reviewed by Dr. Cuello in 2006 was the one that did not evidence dysplasia because the other two slides showing this condition previously had been given to Dr. Saperstein by Dr. Braza.
Thus, viewed in its entirety, the record fairly calls into question the credibility of Dr. Cuello's testimony that she reviewed the slides in 1999, carefully evaluated the tissue shown, and failed to observe or appreciate the glandular dysplasia that was clearly evident. The plaintiff has shown the existence of a material factual dispute about what Dr. Cuello knew or appreciated regarding the dysplasia as part of the 1999 review of the slides. The evidence puts "into question the credibility of the defendant's self-serving statements . . . and thereby create[s] a genuine issue of material fact that the defendant owed a continuing duty to treat the plaintiff's condition." Martinelli v. Fusi, supra, 290 Conn. 364 n. 12.
The court appreciates the defendants' argument that "[i]f plaintiffs can overcome the statute of repose by obtaining an expert who describes the original act of negligence in terms of `must have known' rather than `should have known,' the exception would swallow the rule and the statute of repose would become a nullity." Supplemental Reply to Plaintiffs' Supplemental Opposition to Defendants' Motion for summary Judgment, filed on May 29, 2009, pp. 7-8. The court responds to this concern first by emphasizing the narrowness of this ruling premised on the particular circumstances of this case. The threshold evaluation that this case presents a potentially egregious exception precluding summary disposition through pretrial motion is not premised solely on the opinion of the plaintiff's expert, but on this opinion and the totality of the record presented by the parties, including the defendant Cuello's own testimony and her amended pathology report. Moreover, as explained by the Supreme Court in Martinelli, the plaintiff's burden at trial is not merely to show that Dr. Cuello deviated from the standard of care and that she "should have known" about the findings of dysplasia. The plaintiff must establish by a preponderance of the evidence that the findings of the condition were "so serious and obvious that the defendant must have known that further treatment was required." Martinelli v. Fusi, 290 Conn. 364 n. 12. In other words, the rule remains unchanged that "a continuing duty must rest on the factual bedrock of actual knowledge." (Citation omitted; emphasis added.) Neuhaus v. Decholnoky, supra, 280 Conn. 203. To reiterate, this "difficult task" imposed on the plaintiff reflects the importance of the policy considerations implicated by the statutes of repose and the need to respect these policy choices except in the most exceptional circumstances. Martinelli v. Fusi, 290 Conn. 364 n. 12.
The court also appreciates that a serious charge is made by a claim that a doctor had actual knowledge or suspicion that something was wrong with a diagnosis and failed to warn or advise the patient within the applicable standard of care. Cf. Witt v. St. Vincent's Medical Center, 252 Conn. 363, 375, 746 A.2d 753 (2000) (applying the continuing course of conduct doctrine when the doctor expressed concern about the correctness of the diagnosis).
Although the court concludes that the motions for summary judgment should be denied, the plaintiff makes two additional claims arguing that as a matter of law the statutes of repose do not apply, and that as a result, she should not be put to the burden of proving the applicability of the continuing course of conduct exception. The parties have fully briefed these claims. In the interest of efficient adjudication, the court will address these issues now rather than wait until trial.
III
The plaintiff claims that the equitable tolling doctrine applies to prevent the expiration of the statutes of repose, relying on Pedro v. Miller, 281 Conn. 112, 914 A.2d 524 (2007) and Williams v. Commission on Human Rights Opportunities, 257 Conn. 258, 284, 777 A.2d 645 (2001); cf. Bednarz v. Eye Physicians of Central Connecticut, 287 Conn. 158, 167 n. 8, 947 A.2d 291 (2008) (declining to reach an equitable tolling claim in a medical malpractice case raising a defense under the three-year limitation period of General Statutes § 52-584). The court rejects the plaintiff's argument.
The equitable tolling doctrine has not been addressed extensively by our appellate courts. Judge Sheldon, however, thoroughly summarized the application of the doctrine in Connecticut Insurance Guaranty Ass'n v. Yocum, Superior Court, Judicial District of Hartford, Docket No. CV-94-0539691 S (June 6, 1996, Sheldon, J.) ( 17 Conn. L. Rptr. 343):
The doctrine of equitable tolling finds its origins in federal case law. Its well-settled purpose is to "permit a plaintiff to avoid the bar of the statute of limitations if despite all due diligence he is unable to obtain vital information hearing on the existence of his claim." Code v. Baxter Healthcare Corporation, 920 F.2d 446, 451 (7th Cir. 1990). The requirements for equitable tolling were first articulated in Bailey v. Glover, 88 U.S. (21 Wall) 342 (1874). There, in a federal action to recover for fraud, the Court indicated that the doctrine operated as follows: "[W]hen there has been no negligence or laches on the part of a plaintiff in coming to the knowledge of the fraud . . . and when the fraud has been concealed, or is of such character as to conceal itself, the statute does not begin to run until the fraud is discovered by, or becomes known to, the party suing[.]" Id., 349-50. Since Bailey, the doctrine has been held "to embrace both what is sometimes called the discovery rule, which holds that the statute begins to run only after discovery of the facts constituting the violation; and the related rule that the statute does not begin to run when a plaintiff knows that he has been injured but he cannot obtain information necessary to decide whether the injury is due to wrongdoing and, if so, wrongdoing by the defendant." Gallop v. Commercial Printing Co., 42 Conn.Sup. 187, 192 (1992) [ 6 Conn. L. Rptr. 9] (discussing, but not applying, the doctrine of equitable tolling).
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Under federal law, it is well settled that neither equitable tolling nor equitable estoppel applies to statutes of repose, for "the very purpose [of such statutes] is to set an outer limit unaffected by what the plaintiff knows." Code v. Baxter Healthcare Corporation, supra, 451. Since a plaintiff's knowledge of facts supporting his right of action is immaterial to the legislature's judgment that after a certain period of time, no right of action should arise, it is apparent that the operation of the statute should not be suspended merely because the plaintiff has no knowledge or means of obtaining knowledge of his right of action.
Connecticut Insurance Guaranty Ass'n v. Yocum, supra.
Based on this precedent, the court concludes as follows. First, General Statutes § 52-584 contains a two-year statute of limitations premised on a plaintiff's discovery of the injury. Because the equitable tolling doctrine is based on a "discovery rule," this doctrine would appear to be inapplicable to a statute such as § 52-584 which itself incorporates a discovery rule as part of the statutory limitation. Additionally, the law is well established that equitable tolling does not apply to statutes of repose. Lampf v. Gilbertson, 501 U.S. 350, 363-64 (1991); Connecticut Insurance Guaranty Ass'n v. Yocum, supra. Consequently, equitable tolling is inapplicable to extend the statutes of repose of General Statutes § 52-584 and § 52-555.
The court also notes authority holding that as a general rule, jurisdictional time limits, such those contained in § 52-555, are not subject to equitable tolling. See, e.g., Skurtu v. Mukasey, 552 F.3d 651, 658 (8th Cir. 2008).
IV
Lastly, the plaintiff argues that the application of the statutes of repose would violate her constitutional rights under the due process and open courts provisions of article first, § 10 of the Connecticut constitution; and the equal protection provisions of article first, §§ 1 and 20 of the Connecticut constitution and the fourteenth amendment of the United States constitution. The plaintiff contends that these constitutional claims have never been addressed under facts substantially similar to the facts of this case. The court disagrees. The constitutionality of the repose period contained in General Statutes § 52-584 has been upheld in Golden v. Johnson Memorial Hospital, Inc., supra, 66 Conn.App. 533-42, and Neuhaus v. Decholnoky, 83 Conn.App. 576, 589-95, 850 A.2d 1106 (2004), aff'd on other grounds, supra, 280 Conn. 190. The constitutionality of the § 52-555 repose period of has been upheld in Ecker v. West Hartford, supra, 205 Conn. 234-45. The court finds that the reasoning of these cases is applicable and controlling to the plaintiff's constitutional claims and requires the rejection of these arguments.
CONCLUSION
Therefore, the defendants' motions for summary judgment are denied. The parties are ordered to appear for a scheduling conference on Monday, March 1, 2010 at 2:00 p.m.
So ordered this day of January 2010.