Opinion
No. 398722
November 28, 2003
MEMORANDUM OF DECISION
In this action alleging chiropractic malpractice, the defendant Michael Troyknya moves for summary judgment based on the statute of limitations.
On August 14, 2002, the plaintiff moved, pursuant to subsection (b) of General Statutes § 52-190a, for a ninety-day extension of the statute of limitations to bring this action. The motion was granted, and on November 19, 2002, the plaintiff brought the action against the defendant Michael Troyknya (defendant) and Sport Hill Chiropractic.
At the time the extension was granted, General Statutes § 52-190a provided:
(a) No civil action 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 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. CT Page 13186
The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. For purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject to discovery by any party except for questioning the validity of the certificate, of a similar health care provider as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If 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 that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative, shall impose upon the person who signed such certificate, a represented party or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee. 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.
(b) Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods."
The plaintiff's complaint is in two counts. The first count alleges that between August 16, 1999, and approximately October 16, 1999, the defendant provided continuing care and chiropractic services to the plaintiff. During the course of treatment, the plaintiff's condition worsened, including the onset of severe pain to the right wrist accompanied by radiating pain in the right arm. The plaintiff alleges that "[o]n or about October 16, 1999, the defendant performed an adjustment on the plaintiff's right wrist and immediately upon performing said adjustment the plaintiff experienced severe and excruciating pain of the right wrist and arm." The plaintiff was then referred to Dr. Robert George who found that the plaintiff had a broken wrist. The plaintiff further alleges that the defendant was negligent in his treatment of the plaintiff. The second count alleges that the defendant failed to seek the plaintiff's informed consent to the treatment he gave the plaintiff. The plaintiff also seeks to impose vicarious liability against the named defendant, Sport Hill Chiropractic.
The plaintiff alleges, in paragraph 13 of the Amended Complaint, that the defendant was negligent in one or more of the following ways: A. He failed to properly examine and re-examine the Plaintiff throughout the course of this treatment prior to various manipulations and/or adjustments performed upon the plaintiff; B. He failed to take x-rays, or negligently took x-rays, and/or re x-ray the patient throughout the course of this treatment prior to various manipulations and/or adjustments performed upon the Plaintiff; C. He continued to perform adjustments despite the fact that the patient continued to complain of symptoms which indicated that the adjustments should be discontinued pending further diagnostic testing; D. He continued to perform adjustments despite the fact that the circumstances indicated that he should cease said manipulations; E. Adjustments performed of the Plaintiff's right wrist were inconsistent with the Plaintiff's complaints and not indicated as the adjustments performed of the Plaintiff's right wrist were unusually and unnecessarily forceful; F. The chiropractic manipulations were performed improperly; G. The Defendant failed to perform and/or conduct the proper neurological and/or orthopedic evaluation when the same was reasonably necessary under all the circumstances then and there present; H. The Defendant continued manipulative care in light of the apparent lack of objective improvements; I. Despite the patient's continuing recrudescence and progressive neurological impairment, the Defendant failed to recommend the appropriate medical referral and/or consultation; J. The Defendant failed to properly diagnose the Plaintiff's condition through a referral and/or use of diagnostic tests such as an MRI or a CT scan; K. The Defendant failed to order such diagnostic tests when the same was necessary under all the circumstances then and there present; L. In that the Defendant failed to order appropriate diagnostic test which could and would have reveled to the Defendant that the Plaintiff's right wrist was broken and could and would result in serious injuries to the Plaintiff."
On December 31, 2002, the defendant moved for summary judgment based on the statute of limitations applicable to chiropractic malpractice actions, General Statutes § 52-584. While that motion was sub judice, the defendant filed a motion to strike the complaint for failure to attach a certificate of good faith pursuant to General Statutes § 52-190a(b). The court granted the motion to strike and denied the motion for summary judgment on May 27, 2003. The plaintiff promptly re-filed his two-count complaint, with a good faith certificate attached. On June 25, 2003, the defendant, pursuant to Practice Book § 11-11, timely moved to reargue the court's decision denying the motion for summary judgment. On July 7, 2003, the court issued an order directing the parties `to file supplemental briefs within thirty days discussing the issue of `actionable harm' . . ." Having reconsidered its earlier decision, the court now grants summary judgment.
"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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non moving party . . . 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." (Citations omitted; internal quotation marks omitted.) Gould v. Mellick, 263 Conn. 140, 146, 819 A.2d 216 (2003). "In opposing a motion for summary judgment, the opposing party must substantiate its adverse claim with evidence disclosing the existence of [an issue of material fact]." (Internal quotation marks omitted.) Zanoni v. Lynch, 79 Conn. App. 309, 324, 830 A.2d 304 (2003).
"Summary 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); and "is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period." (Internal quotation marks omitted.) Collum v. Chapin, 40 Conn. App. 449, 453, 671 A.2d 1329 (1996). In a medical malpractice action, the defendant is entitled to summary judgment if he "[demonstrates] that there [is] no genuine issue as to the time when [the plaintiff] discovered or in the exercise of reasonable care should have discovered [his or] her injury, a material fact necessary to determine the commencement of the running of the statute of limitations." (Internal quotation marks omitted.) Catz v. Rubenstein, 201 Conn. 39, 43, 513 A.2d 98 (1986).
In support of his motion for summary judgment, the defendant has submitted his own affidavit attesting that he first treated the plaintiff on August 16, 1999, and last treated him on August 23, 1999. He also points to the allegations in both the original and amended complaints, which allege that during the defendant's treatment of the plaintiff, his condition worsened, "including the onset of severe pain to the right wrist accompanied by radiating pain to the right arm" and that "the Defendant performed an adjustment on the plaintiff's right wrist and immediately upon performing said adjustment the plaintiff experienced severe and excruciating pain of the right wrist and arm." These allegations are judicial admissions, binding on the plaintiff. See, e.g., Flanagan v. Blumenthal, 265 Conn. 350, 373, 828 A.2d 572 (2003). Indeed, the plaintiff does not disavow the allegations.
Additionally, the defendant has submitted the affidavit of Dr. Robert George, the physician to whom the plaintiff alleges he was referred. In his affidavit, Dr. George verifies a medical record attached to his affidavit. That record, which is dated July 31, 2002, states:
07/31/02: Mr. Villa is a 25-year-old male with multiple questions about multiple issues. He injured his wrist 2 years ago playing semi-pro football, apparently only a chiropractor evaluated him and he had a lot of swelling at that time. The swelling went down but he had persistent wrist pain. He also has a click in his right hip and he also had an injury to his quadriceps or something towards the right upper thigh and he had a bump there for quite a while. He feels sometimes he can still feel it. He also has had sort of a burning feeling in his left knee but the symptoms there are rather vague. Exam reveals tender tenderness in the mid and radial carpus and x-ray shows what appears to be a non-union of a navicular fracture, which apparently was missed two years ago. I think he should have a fine cut CAT scan to assess whether this is a malunion or a non-union and then that would lead to discussion as to whether anything should be done. I don't think the proximal pole is avascular. The knee exam is not revealing. I really cannot find everything, and I've gone through all the maneuvers. The hip shows what is probably an iliofemoral ligament click and I would not worry about it. He is tight and perhaps tighter on the right than the left, Status post his prior injury. So I would do rectus stretches several times a day and that should be helpful. We will see him back following the CT . . . 8/12/02 — no show — pt called forgot appt — will call to reschedule after Labor day . . .
I
Preliminarily, the plaintiff claims that the defendant's motion is premature since it has been filed prior to the filing of an answer by the defendant and, thus, before the pleadings have been closed.
Prior to the current revision of the Practice Book in 1998, Practice Book, 1978, § 379 provided in relevant part: "In any action, except actions for dissolution of marriage, legal separation, or annulment of marriage, and except administrative appeals which are not enumerated in Sec. 257(d), any party may move for a summary judgment, provided that the pleadings are closed as between the parties to that motion." (Emphasis added.) Thus, in general, "[t]he rules of practice in Connecticut require[d] that all pleadings be closed before a party may move for summary judgment." Orticelli v. Powers, 197 Conn. 9, 15, 495 A.2d 1023 (1985); see Griggs v. BG Land, Inc., 24 Conn. App. 611-12, 590 A.2d 982 (1991) (reversing the granting of summary judgment where pleadings were not closed); Rocherolle v. Godina, 17 Conn. App. 814, 815, 551 A.2d 420 (1988) (same).
This requirement was abolished with the 1998 revision of the Practice Book. Section 17-44 of the Practice Book now provides in relevant part: "In any action, except administrative appeals which are not enumerated in Section 14-7, any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial." (Emphasis added.) Therefore, a motion for summary judgment may now be filed before the pleadings are closed. The plaintiff's claim that the motion for summary judgment is premature is not well taken.
II
Turning to the merits of the defendant's motion, the defendant originally argued only that this action was brought beyond the three-year limit established in General Statutes § 52-584.
General Statutes § 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." (Emphasis added.) This statute also applies to claims that a health care provider has failed to obtain informed consent for a procedure; Lambert v. Stovell, 205 Conn. 1, 5, 529 A.2d 710 (1987); such as is contained in the second count of the amended complaint here.
"[T]he relevant `date of the act or omission complained of;' as that phrase is used in § 52-584, is `the date when the negligent conduct of the defendant occurs and . . . not the date when the plaintiff first sustains damage.' Vilcinskas v. Sears, Roebuck Co., 144 Conn. 170, 173, 127 A.2d 814 (1956) (interpreting General Statutes [1949 Rev.] § 8324, predecessor to § 52-584); Prokolkin v. General Motors Corp., 170 Conn. 289, 294-97, 365 A.2d 1180 (1976) (utilizing interpretation of § 52-584 to construe same language in General Statutes § 52-577). In the medical malpractice context, [the Supreme Court has] 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. Stein v. Katz, 213 Conn. 282, 285, 567 A.2d 1183 (1989); Catz v. Rubenstein, 201 Conn. 39, 49-50, 513 A.2d 98 (1986); McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 334, 471 A.2d 646 (1984)." Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994).
The unrefuted documentary proof provided by the defendant establishes that the date that the defendant last treated the plaintiff, and hence, the date of the last possible negligent act or omission, was August 23, 1999. Three years hence was August 23, 2002. This lawsuit was brought on November 19, 2002. Thus, unless the statute of limitations was tolled or otherwise extended, it is barred by the three-year limit in § 52-584.
Prior to the commencement of the lawsuit, the plaintiff moved for a ninety-day extension of the statute of limitations, pursuant to General Statutes § 52-190a(b). General Statutes § 52-190a(b) provides: "Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods." The motion was granted.
The defendant argues that because the plaintiff failed to make the reasonable inquiry required by General Statutes § 52-190a(a) and failed to attach a good-faith certificate to his original complaint, she should not have the benefit of the automatic extension of time prescribed by General Statutes § 52-190a(b).
The court need not determine whether a failure to make the reasonable inquiry required by § 52-190a(a) after being afforded an extension of time to do so under § 52-190a(b) vitiates the extension. This is because the defendant has failed to adduce any evidence that the plaintiff failed to make such a reasonable inquiry. As for the plaintiff's failure to attach the good faith certificate to his original complaint, that default was cured subsequent to the granting of the defendant's motion to strike when the plaintiff filed an amended complaint with the good faith certificate annexed. "The lack of a certificate of good faith is not a jurisdictional defect and thus does not deprive the court of subject matter jurisdiction. LeConche v. Elligers, [ 215 Conn. 701, 713, 579 A.2d 1 (1990)]. Our cases explain that the failure to attach a certificate of good faith pursuant to § 52-190a subjects the case to a motion to strike the complaint pursuant to Practice Book § 152(1) [now Practice Book § 10-39] for failure to state a claim upon which relief can be granted, but that the defect is curable by a timely amendment filed pursuant to Practice Book § 157 [now Practice Book § 10-44] or Practice Book § 175 [now Practice Book § 10-59]. Id., 711; Yale University School of Medicine v. McCarthy, [ 26 Conn. App. 497, 502, 602 A.2d 1040 (1992)]." (Footnotes omitted.) Gabrielle v. Hospital of St. Raphael, 33 Conn. App. 378, 384, 635 A.2d 1232, cert. denied, 228 Conn. 928, 640 A.2d 115 (1994).
Thus, the statute of limitations was extended from August 23, 1999 to November 23, 2002. Since service of process was made on the defendant on November 19, 2002, this action was brought within the three-year period prescribed by General Statutes § 52-584.
III
The defendant also argues that the plaintiff failed to comply with the other requirement of General Statutes § 52-584; that is, that the action is time barred because the plaintiff did not bring it "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 . . ." The defendant argues that the actionable harm that triggered the statute of limitations was the pain and injury Villa incurred in 1999 and not Villa's discovery that he had a broken wrist in 2002. The court agrees with the defendant.
General Statutes § 52-584 provides in relevant part: "No action to recover damages for injury to the person . . . caused by negligence, or by reckless or wanton misconduct, or by malpractice of a . . . chiropractor . . . 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 . . ." "[The Connecticut Supreme Court] has construed the word `injury' in General Statutes § 52-584, which establishes the date for commencement of the period allowed for bringing a malpractice action as `two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered' to refer to some form of actionable harm. Catz v. Rubenstein, 201 Conn. 39, 45, 513 A.2d 98 (1986). "`Actionable harm" occurs when the plaintiff discovers, or in the exercise of reasonable care should have discovered, the essential elements of a cause of action.' Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 (1987). The statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof. Burns v. Hartford Hospital, 192 Conn. 451, 460, 472 A.2d 1257 (1984)." Merly v. State, 211 Conn. 199, 205-06, 558 A.2d 977 (1989).
The issue is when the plaintiff discovered or in the exercise of reasonable care should have discovered some form of actionable harm. The plaintiff himself alleges that he engaged the defendant to provide chiropractic treatment; that the defendant performed chiropractic adjustments on the plaintiff's right wrist on diverse days; that during the course of treatment, the plaintiff's condition worsened, "including the onset of severe pain to the right wrist accompanied by radiating pain to the right arm." (Emphasis added.) Notably, the word "onset" is defined as "attack" or "beginning." Merriam-Webster's Dictionary. At what was apparently his last visit to the defendant — which the plaintiff alleges was on or about October 16, 1999, but which the plaintiff's proof fixes at August 23, 1999 — the plaintiff alleges that "the Defendant performed an adjustment on the Plaintiffs right wrist and immediately upon performing said adjustment the Plaintiff experienced severe and excruciating pain of the right wrist and arm." (Emphasis added.)
The plaintiff argues in his brief that the defendant failed to diagnose a broken bone which has subsequently died from poor blood supply. According to the plaintiff, "`[t]he injury was not the broken bone' but the now dead bone. The plaintiff was not made aware of this `injury' until he saw Dr. George in 2002. This is when `actionable harm' was suffered."
The court disagrees that the injury is the now dead bone. Where, as here, the plaintiff's condition not only worsened during his treatment with the defendant, but that worsening included the onset of severe pain to his right wrist with radiating pain to the right arm, and, especially, where during an adjustment to his right wrist, "the plaintiff experienced severe and excruciating pain of the right wrist and arm," the plaintiff, in the exercise of reasonable care, should have discovered that he not only was not getting the care from the defendant that he needed but that the care he was receiving was obviously harming him.
As observed supra, "[t]he statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof." Merly v. State, supra, 211 Conn. 205-06. And, "[a]lthough an expert opinion may lead to discovery of an `actionable harm' . . . it does not follow that a plaintiff cannot reasonably discover an injury absent verification by a qualified expert." Barnes v. Schlein, 192 Conn. 732, 738 n. 7, 473 A.2d 1221 (1984). "With respect to the language of § 52-584, our Supreme Court has stated, `To hold that a claimant has an option to present his claim within one year from the actual discovery of actionable harm rather than from the time when such harm "in the exercise of reasonable care should have been discovered" would render the latter phase superfluous and wholly ineffective in requiring reasonable diligence on the part of claimants.' Merly v. State, supra, 207, citing § 52-584." Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn. App. 311, 323-24, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000).
On reconsideration, the motion for summary judgment is granted.
BY THE COURT
BRUCE L. LEVIN, JUDGE OF THE SUPERIOR COURT.