Opinion
No. CV07-5008732S
November 21, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion #144.00)
Facts
The plaintiffs, Kathleen Trungadi and Rocco Trungadi, commenced this medical malpractice action against the defendants, Kenneth Mauer, a physician, and Gastroenterology Associates, P.C., on May 30, 2007. In the revised two-count complaint filed on April 20, 2010, the plaintiffs allege the following. Mauer performed on the patient a colonoscopy on December 8, 1999, a flexible sigmoidoscopy on October 4, 2001, and a colonoscopy October 26, 2005; none of these procedures revealed any significant findings or abnormalities. In June 2006, the patient was hospitalized after suffering a "massive lower gastrointestinal hemorrhage." A colonoscopy and other procedures performed at that time revealed that she had an 8-centimeter tumor involving the ileocecal valve. She was diagnosed with metastatic colon cancer, and nine of twenty-five of her lymph nodes tested positive for metastatic disease. The plaintiffs allege that Mauer failed to discover an existing mass in the prior examinations, which delayed the patient's diagnosis and allowed the mass to "grow unchecked and advance to a large metastatic tumor." They allege further that Mauer was acting in the scope of his agency or employment with Gastroenterology Associates, P.C., and that Mauer's negligence is therefore attributable to that entity.
Rocco Trungadi makes a claim for loss of consortium. The plaintiff Kathleen Trungadi will be referred to as the patient.
The defendants filed an answer, in which they admit that the procedures described were performed on the dates as alleged, but deny the remaining relevant allegations or otherwise leave the plaintiffs to their proof. The defendants raised the applicable statute of limitations for medical negligence, General Statutes § 52-584, as a special defense to "some or all" of the claims. On May 10, 2011, the defendants moved for summary judgment on the allegations pertaining to the 1999 colonoscopy and the 2001 flexible sigmoidoscopy on the ground that these allegations concern procedures that occurred outside the applicable limitations period, and that no equitable doctrines that would operate to toll the limitations period apply to the present case. The plaintiffs filed an objection to the defendants' motion on August 19, 2011. The defendants filed a reply brief on August 25, 2011, and the plaintiff a response on September 9, 2011. This court heard oral argument at the short calendar on September 12, 2011.
Section 52-584 provides: "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."
Discussion
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). "The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Id.
I Evidence
Before addressing the merits of the defendants' motion, the court will address the defendants' objection to certain evidence submitted by the plaintiff. In their initial memorandum in opposition, the plaintiffs submitted the "declaration" of Lionel Grossbard, a physician who is board certified in internal medicine, hematology and oncology. This document is signed and dated, but unsworn. In their reply brief, the defendants objected to the court's considering his "declaration" on the ground that his "conclusory . . . opinion would be tantamount to taking an advisory opinion from him on a matter of law." The plaintiffs responded to the defendants' reply brief by filing the similarly unsworn declaration of Marie Borum, a gastroenterologist. The defendants made no objection to the court considering this "declaration."
Pursuant to Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006), this court, in the past, has considered uncertified deposition transcripts and other documentary evidence, in the absence of any objection from the opposing party. See, e.g., Mollica v. Toohey, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 06 5000415 (June 14, 2010, Bellis, J.); Pellegrino v. Jack, Superior Court, judicial district of Fairfield, Docket No. CV 06 5006035 (December 2, 2008, Bellis, J.) ( 46 Conn. L. Rptr. 736). In the present case, the defendants have objected only to Grossbard's declaration. Nonetheless, the court declines to consider either declaration because neither Grossbard's nor Borum's declaration was sworn before an officer authorized to administer oaths. This is not a merely technical defect, such as an unopposed failure to attach a certain page to a copy of a deposition transcript. Rather, because neither "declaration" qualifies as an affidavit, it is not competent evidence. The plaintiffs cannot rely upon these unsworn statements to raise issues of material fact or otherwise to oppose summary judgment. Cf Fogarty v. Rashaw, supra, 193 Conn. 444; Practice Book § 17-45.
"A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45. "[Section 17-45], although containing the phrase including but not limited to, contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." (Emphasis in original; internal quotation marks omitted.) Gianetti v. Anthem Blue Cross Blue Shield of Connecticut, 111 Conn.App. 68, 72-73, 957 A.2d 541 (2008), cert. denied, 290 Conn. 915, 965 A.2d 553 (2009). "An affidavit is defined as `[a] voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths.' Black's Law Dictionary (7th Ed. 1999) . . . [U]nsworn statements . . . do not fit this definition." Krassner v. Ansonia, 100 Conn.App. 203, 209, 917 A.2d 70 (2007). Unsworn statements made in a document purporting to be an affidavit have "no evidentiary value"; Viola v. O'Dell, 108 Conn.App. 760, 768, 950 A.2d 539 (2008); and cannot be relied on in support of or in opposition to a motion for summary judgment. See Fogarty v. Rashaw, 193 Conn. 442, 444, 476 A.2d 582 (1984).
II Summary Judgment
As a procedural matter, the court notes that although the defendants moved for summary judgment on the ground that the claims were "time-barred . . . [and] [t]he continuing course of conduct and/or continuing course of treatment doctrines cannot be applied to toll the statute of limitations in this case," they argue in their reply brief that the issue of whether the tolling provisions apply is not properly before the court. Specifically, they argue that the plaintiffs failed to plead either tolling provision in avoidance of the defendants' statute of limitations defense as required by Practice Book § 10-57 because they replied only with a general denial. However, this has not worked a surprise or injustice on the defendants in this case, in light of the ground articulated in their motion and the accompanying arguments in their memorandum. Cf. Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn.App. 680, 689, 974 A.2d 764 (court properly refused to charge jury with tolling doctrine not pleaded), cert. denied, 293 Conn. 916, 979 A.2d 488 (2009). Accordingly, in the interest of judicial economy, on the appropriate motion, the plaintiffs will be permitted to file a substitute reply to special defenses that complies with § 10-57.
Although "[i]ssues of negligence are ordinarily not susceptible of summary adjudication [and] should be resolved by trial in the ordinary manner"; (internal quotation marks omitted) Fogarty v. Rashaw, supra, 193 Conn. 446; "[s]ummary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). The statute of limitations governing a medical malpractice suit is § 52-584, which provides in relevant part that "[n]o action to recover damages for injury to the person . . . caused by negligence . . . or by malpractice of a physician . . . 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 . . ."
The defendants move for summary judgment on the ground that some of the plaintiffs' claims are time barred. The plaintiffs allege, and the defendants admit, that the defendants provided medical treatment to the patient on December 8, 1999, October 4, 2001, and October 26, 2005. The plaintiffs commenced this action on May 30, 2007. It is undisputed that the 1999 colonoscopy and the 2001 flexible sigmoidoscopy occurred outside the repose period of § 52-584. The plaintiffs bear the burden of raising a genuine issue of material fact that these claims are subject to an equitable doctrine that would allow the repose period to be tolled. See Martinelli v. Fusi, 290 Conn. 347, 370, 963 A.2d 640 (2009).
Regarding the tolling doctrines, the defendants argue that neither the continuing course of conduct nor the continuing course of treatment doctrines can be applied to toll the statute of limitations in this case. Specifically, they maintain that the 1999 colonoscopy was a "routine screening exam" and that the 2001 flexible sigmoidoscopy was in response to a specific complaint of rectal bleeding, which required no follow up appointments such that the patient "had no reasonable expectation of any further care or treatment." They maintain further that there is "no connection" between the 1999 colonoscopy, the 2001 flexible sigmoidoscopy and the 2005 colonoscopy, and that the continuous course of treatment doctrine is inapplicable.
In their initial brief, the defendants also argue that it is proper to grant partial summary judgment as to specific claims contained within a single count-here the allegations pertaining to the alleged negligent acts connected with the 1999 colonoscopy and the 2001 flexible sigmoidoscopy-when such untimely claims are easily separated from the distinct claim arising out of the alleged negligent acts connected to the 2005 colonoscopy. There is no appellate authority and a split among Superior Court authority as to whether it is proper to excise only certain allegations of a count through summary judgment when such judgment would not dispose of a discrete cause of action. Compare Mazurek v. Great American Insurance Company, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket at Waterbury, Docket No. X02 CV 01 0177433S (December 16, 2004, Schuman, J.) ( 38 Conn. L. Rptr. 402) (granting summary judgment on parts of paragraph in negligence count asserting various specifications of negligence), aff'd in part and appeal dismissed in part, 284 Conn. 16, 930 A.2d 682 (2007), with Shelton Yacht Cabana Club, Inc. v. Voccola, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 01 0075380 (February 2, 2007, Stevens, J.) ("[s]ummary judgment is unavailable as to particular allegations in a count when such an adjudication does not dispose of an entire cause of action . . ."). This court does not need to resolve the issue in the present case because there are disputed issues of material fact that preclude an entry of summary judgment.
The plaintiffs counter that the gravamen of their claim is that it takes years for a polyp to develop into a "massive tumor," and that the defendants had multiple opportunities between 1999 and 2005 to detect and prevent the patient's colon cancer. They dispute the defendants' characterization of the 1999 colonoscopy and the 2001 flexible sigmoidoscopy as discrete and isolated instances of care, and maintain that the defendants provided continuing care and monitoring. The plaintiffs maintain that there are disputed issues of fact regarding whether the statute of limitations can be tolled by either the continuing course of treatment or the continuing course of conduct doctrines. The plaintiffs argue, in part, that the patient's identified medical condition was a greatly increased risk of colon cancer based on her family history.
In their reply, the defendants respond that a higher risk of developing cancer is not an "identified medical condition" as the term is used pertaining to the continuing course of treatment doctrine. They argue that routine, periodic exams and cancer screenings do not fit within the continuing course of treatment doctrine, nor does an isolated diagnostic procedure performed in response to a specific complaint when no follow up is anticipated or required. The plaintiffs submitted a brief supplemental memorandum in rebuttal, taking the position that whether an increased risk of cancer is an identified medical condition is a question of fact.
"[T]o establish a continuous course of treatment for purposes of tolling the statute of limitations in medical malpractice actions, the plaintiff is required to prove: (1) that he or she had an identified medical condition that required ongoing treatment or monitoring; (2) that the defendant provided ongoing treatment or monitoring of that medical condition after the allegedly negligent conduct, or that the plaintiff reasonably could have anticipated that the defendant would do so; and (3) that the plaintiff brought the action within the appropriate statutory period after the date that treatment terminated. As we previously have recognized, the determination that any of these elements exists is conspicuously fact-bound." (Internal quotation marks omitted.) Grey v. Stamford Health Systems, Inc., 282 Conn. 745, 754-55, 924 A.2d 831 (2007). To raise a genuine issue of fact that the continuing course of treatment doctrine applies, "the plaintiff [is] required, at the very least, to submit evidence demonstrating the existence of an ongoing physician-patient relationship with the defendant with respect to the particular malady complained of . . ." Martinelli v. Fusi, supra, 290 Conn. 370.
In Grey v. Stamford Health Systems, Inc., supra, 282 Conn. 745, our Supreme Court upheld the trial court's conclusion that the continuous course of treatment doctrine did not apply to a series of mammograms performed by the defendant radiologist. In that case, "[t]he plaintiff had no suspicious symptoms and was not receiving ongoing treatment from any physician for any particular breast condition. Rather, the allegedly negligent conduct occurred during the course of a series of routine breast cancer diagnostic examinations associated with routine medical checkups. Because routine periodic treatment, by its very nature, has no natural termination point and cannot culminate in a cure, it does not implicate the public policy in favor of allowing the plaintiff to terminate a course of treatment before tolling the statute of limitations in order to avoid disputes over the date of the negligent conduct and to protect the doctor-patient relationship until a cure is achieved . . . If the continuous treatment doctrine applied in such cases, the exception would swallow the rule and the statute of limitations would be rendered a nullity." (Citation omitted.) Id., 761-62.
In the present case, the crux of the parties' dispute is whether the patient had an identified medical condition for the purposes of this tolling doctrine. In their reply brief, the defendants maintain that the patient, like the plaintiff in Grey, underwent routine screening procedures in 1999 and 2005, and that the 2001 sigmoidoscopy was an isolated diagnostic procedure in response to a specific complaint of rectal bleeding and was unrelated to the later-discovered cancer. Accordingly, they maintain, the plaintiffs cannot prove that the patient had an identified medical condition subject to on-going treatment that could culminate in a cure.
The plaintiffs submitted as evidence excerpts from Mauer's deposition transcript, in which he stated that had he found any abnormalities during the colonoscopy, he would have removed them. The plaintiffs argue in their brief that this is evidence that Mauer treated conditions, as distinguishable from the defendant radiologist in Grey. The plaintiffs submitted evidence that Mauer considered the patient's family history, which included a first degree relative dying of colorectal cancer before the age of fifty, to be "very significant" as well as evidence that Mauer considered the patient's increased risk of cancer to constitute a medical condition. For example, Mauer listed the patient's "diagnosis" as "family history of colon cancer" in a 1999 preoperative evaluation and stated the same was his "impression" in postoperative reports.
Although the defendants maintain that the court is presented with a pure question of law, whether the patient had an identified medical condition in 1999 that required ongoing treatment or monitoring is a "conspicuously fact-bound" determination. Grey v. Stamford Health Systems, Inc., supra, 282 Conn. 755. The function of the court on a motion for summary judgment is not to weigh the evidence, but to determine whether the evidence submitted raises a triable issue of fact. Based on the evidence submitted, there is a disputed issue of fact as to whether the 1999 colonoscopy was part of a continuing course of treatment for an identified condition.
The patient in Grey had no suspicious symptoms and was not receiving ongoing treatment for any particular condition. In contrast, the plaintiffs here submitted evidence and the patient attested in her affidavit that rectal bleeding was a symptom that Mauer had indicated warranted his attention. The plaintiffs also presented evidence that the 2001 flexible sigmoidoscopy performed in response to the patient's complaint of rectal bleeding would not have revealed abnormalities in the cecum, which is where the tumor later was discovered. They submitted evidence that the patient consented to the flexible sigmoidoscopy, which could include a "possible biopsy" and "the treatment of any condition discovered during the procedure which is necessary and advisable to treat immediately." Based on the evidence submitted, the court cannot determine as a matter of law that the 2001 sigmoidoscopy performed in response to a complaint of rectal bleeding was an isolated diagnostic procedure, unrelated to a continuing course of treatment.
The plaintiffs have submitted evidence sufficient to raise a factual dispute as to whether the defendants provided treatment in 1999 and 2001 for an identified condition, and thus have succeeded in raising triable issues of fact concerning the applicability of the continuing course of treatment doctrine. Accordingly, there is no need for the court to analyze separately the applicability of the continuing course of conduct doctrine at this time. See Grey v. Stamford Health Systems, Inc., supra, 282 Conn. 753 (when both doctrines raised in response to statute of limitations defense, it may be "unnecessary to disentangle the doctrines and to specify which particular facts support which doctrine").
Conclusion
The defendants' motion for summary judgment is denied.