Opinion
CV166066087S
05-20-2019
Kachainy Williams-Coleman PPA Murlene Williams v. Yale Medical Group
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilson, Robin L., J.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#130)
Wilson, J.
FACTS
On October 3, 2016, the plaintiffs, Kachainy Williams-Coleman (Kachainy), by and through her adoptive mother and next friend, Murlene Williams (Williams), and Williams, in her individual capacity, commenced this negligence action by service of writ, summons and complaint against the defendants, Yale Medical Group, Yale University School of Medicine, Yale-New Haven Hospital, Inc., Yale New Haven Health System, and a nurse, Denice C. Wagner. Since the action began, two counts of the complaint have been removed: count three, sounding in medical malpractice, was dismissed by this court (Wilson, J.) on December 4, 2017, and count two, the only claim brought by Williams in her individual capacity, was voluntarily withdrawn on September 14, 2018. Accordingly, Kachainy is the sole remaining plaintiff in this action and her only remaining count is count one, which sounds in failure to obtain the plaintiff’s informed consent.
Although spelled as both "Kachainy" and "Kaichany" in the plaintiffs’ complaint, her name will hereafter be spelled "Kachainy" as that is the spelling used in the summons.
For ease of reference, the defendants Yale Medical Group, Yale University School of Medicine, Yale-New Haven Hospital, Inc., and Yale New Haven Health System are hereafter referred to collectively as Yale.
This court (Wilson, J.) on February 24, 2019, sustained (Docket Entry #138.10) the defendant’s objection (Docket Entry #138.00) to the plaintiff’s request for leave to amend the complaint, which attempted to reinsert the allegations of Williams’ own direct damages.
The plaintiff alleges the following facts in count one of the complaint. Kachainy was born with congenital HIV and has suffered from developmental delays, mental challenges, and hearing deficits. Kachainy has been under the care and custody of Williams since she was 1 1/2 years old. Williams legally adopted Kachainy when she was approximately eleven years old. On or about June 23, 2008, Williams was appointed by the Court of Probate in West Haven, Connecticut, as Plenary Guardian for Kachainy, and has continued to act in her capacity as Plenary Guardian in order to exercise, among other things, Kachainy’s legal right to file the present lawsuit.
Between 2008 and 2009, Wagner, a nurse practitioner employed by Yale, established a nurse-patient relationship with Kachainy. During that time, Wagner prescribed and administered Depo-Provera, an injectable form of birth control, to Kachainy approximately every three months until about July of 2013. After Kachainy refused the Depo-Provera shot on or about July 10, 2013, Wagner decided to switch Kachainy’s birth control from Depo-Provera to an oral contraceptive, Orthocyclen, even though Kachainy had demonstrated issues of noncompliance with taking other medication in the past; a change which Williams, acting as Kachainy’s guardian, would not have agreed to had she known about it. By the time Kachainy was prescribed Orthocyclen she was twenty-one years old, had expressed a desire to become pregnant, and told Wagner that she was having unprotected sex. Kachainy expressed to Wagner that "babies are cute" and that her boyfriend "really want[ed] [her] to have his baby." Compl., Count 1, ¶15. On February 25, 2014, Kachainy found out that she was pregnant. On September 30, 2014, Kachainy delivered a baby girl. At no time did Williams ever support Kachainy’s decision to become pregnant nor did she ever consent to the discontinuation of Kachainy’s Depo-Provera shots. As a result of Yale’s and Wagner’s failure to obtain Kachainy’s informed consent with regard to taking her off Depo-Provera, which could only have been obtained through Williams as guardian, Kachainy suffered injuries and damages, which include: a complicated pregnancy; aggravation and/or exacerbation of her underlying HIV condition; emotional distress and mental anguish about being a mother and not being able to establish a normal maternal relationship with her child; and, anxiety and apprehension about being an unfit mother and about her mental and physical condition, as well as the mental and physical condition of her child.
On November 1, 2018, Yale and Wagner filed answers and special defenses, all of which assert the special defense that Kachainy’s claim is barred by the statute of limitations set forth in General Statutes § 52-584. On January 8, 2019, Kachainy filed a reply to Yale’s and Wagner’s answers, denying the allegations of the special defenses contained therein. On November 1, 2018, Yale and Wagner also filed a joint motion for summary judgment on the ground that Kachainy’s claim is barred by the statute of limitations set forth in § 52-584. In support of the motion, the defendants attached a partial copy of Williams’ deposition transcript. On January 22, 2019, Kachainy filed a memorandum of law in opposition to Yale’s and Wagner’s joint motion for summary judgment on the ground that there is a genuine issue of material fact whether the statute of limitations set forth in § 52-584 is tolled under the continuing course of treatment doctrine; and because of Williams’ delayed discovery of actionable harm. In support of her objection, the plaintiff included copies of notes from Kachainy’s doctor’s appointments. The court heard oral argument on the motion at short calendar on January 22, 2019.
Section 52-584 provides in relevant part: "No action to recover damages for injury to the person ... caused by negligence, 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."
This court notes that Kachainy did not properly raise the continuing course of conduct doctrine in her reply to Yale’s and Wagner’s special defenses, but instead, asserted it for the first time in her objection to Yale’s and Wagner’s joint motion for summary judgment. The plaintiff did not plead the existence of a continuing course of conduct doctrine in avoidance of the defendants’ statute of limitations defense, but rather replied with only a general denial. Practice Book § 10-57 provides in relevant part: "Matter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply." "Under § 10-57, the continuing course of conduct doctrine is a matter that must be pleaded in avoidance of a statute of limitations special defense." Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286, 300, 94 A.3d 553 (2014). However, "our Supreme Court has previously ... afforded trial courts discretion to overlook violations of the rules of practice and to review claims in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." (Internal quotation marks omitted.) Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn.App. 680, 689, 974 A.2d 488 (2009). In addition, "[b]eyond the trial courts’ discretion to overlook violations of the rules of practice in the absence of a timely objection from the opposing party; see, e.g., Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003); it may be just to reach the merits of a plaintiff’s claim to a toll of the statute of limitations, even when not properly pleaded pursuant to Practice Book § 10-57, if the issue is otherwise put before the trial court and no party is prejudiced by the lapse in pleading. For example, in Bellemare v. Wachovia Mortgage Corp., supra, 94 Conn.App. at 607, 894 A.2d 335, the Appellate Court deemed it ‘just’ to reach the merits of a plaintiff’s claim that the statute of limitations was tolled by the continuing course of conduct doctrine, despite the plaintiff’s failure to plead the doctrine properly pursuant to Practice Book § 10-57, when the plaintiff asserted the doctrine’s applicability ‘for the first time in a pleading filed in opposition to the defendant’s motion for summary judgment,’ observing that ‘however imperfectly, the plaintiff placed the issue before the court ...’ See also Mollica v. Toohey, 134 Conn.App. 607, 611 n.3, 39 A.3d 1202 (2012) (reviewing plaintiffs’ continuing course of conduct claim because, although they failed to plead that issue in avoidance of special defense, defendant did not object in trial court when plaintiffs raised doctrine in their objection to his summary judgment motion)." Flannery v. Singer Asset Finance Co., LLC, supra, 312 Conn. 301-02. Likewise, here, this court will respond substantively to the issue, however imperfectly, Kachainy placed the issue before the court, and because the defendants have not objected.
On February 6, 2019, Yale and Wagner filed a reply memorandum to Kachainy’s objection to their joint motion for summary judgment asserting that the continuing course of treatment doctrine is inapplicable and that the date when Williams discovered her own direct harm is a red herring for purposes of Kachainy’s claim. Thereafter, on March 8, 2019, Kachainy filed a memorandum in further opposition to the motion for summary judgment, which Yale and Wagner replied to, with their own memorandum, on March 15, 2019.
During oral argument on the motion on January 22, 2019, the court provided Yale and Wagner the opportunity to file a reply to Kachainy’s memorandum of law in opposition to their motion for summary judgment within two weeks time, and such reply was filed on February 6, 2019. In addition, on January 22, 2019, the court provided Kachainy the opportunity to submit an additional brief in support of her position regarding General Statutes § 52-593a, which she did, on March 8, 2019; Yale and Wagner were provided the opportunity to reply to said additional brief, which was done on March 15, 2019. Thus, in reaching its decision on this motion, the court will consider the briefs of the parties dated: November 1, 2018; January 19, 2019; February 6, 2019; March 8, 2019; and, March 15, 2019.
DISCUSSION
"Summary judgment is a method of resolving litigation when 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 ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). "Summary judgment may be granted where the claim is barred by the statute of limitations ... Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute ..." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). The burden remains "on the moving party to establish that a party did not act in a timely manner when the statute they are relying on specifically provides for tolling as an alternative method of timeliness." Id., 322-23. In such circumstances, "the party moving for summary judgment should not be able to prevail by showing the absence of a genuine issue of fact solely with respect to one part of the statute upon which it relies, while ignoring the statutory tolling provisions which provide an alternate means of commencing a timely action. Accordingly, defendants moving for summary judgment pursuant to [such a statute] should have the initial burden of demonstrating the nonexistence of a genuine issue of material fact with respect to both the [statutory] limitation period and the statute’s compulsory tolling provision." (Emphasis omitted.) Id., 323.
In the present case, Yale and Wagner jointly move for summary judgment on the ground that there is no genuine issue of material fact that count one is barred by the two-year statute of limitations set forth in § 52-584, in that Williams discovered the change in Kachainy’s birth control before February 25, 2014. More specifically, the defendants argue that Williams had knowledge of facts prior to February 25, 2014, that put her "on notice of the nature and extent of [Kachainy’s] injury, and that the injury was caused by the negligent conduct of" the defendants. Lagassey v. State, 268 Conn. 723, 749, 846 A.2d 831 (2004). Moreover, the defendants argue that Williams became aware of Kachainy’s pregnancy on February 25, 2014, thereby requiring this action to be commenced no later than February 25, 2016.
Kachainy argues in opposition that there is a genuine issue of material fact whether the statute of limitations period should be tolled because of the continuing course of treatment doctrine, and because Williams did not discover an actionable harm until September 30, 2014, which is the date the baby was born. More specifically, Kachainy argues that even though the initial wrongful act committed by Yale and Wagner occurred on July 10, 2013, when the method of birth control was changed, the wrongful action remained in effect until, at least, the pregnancy was discovered on February 25, 2014, thereby making the commencement of this lawsuit timely by falling within the three-year statute of repose pursuant to § 52-584. Furthermore, Kachainy argues that Williams did not suffer an actionable harm until the baby was born on September 30, 2014. Thus, by delivering process to a state marshal on September 30, 2016, and the marshal having served it within thirty days of that date on the defendants, the present action meets the two-year discovery rule pursuant to § 52-584 and General Statutes § 52-593a.
Section 52-593a provides in relevant part: "Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal ... within such time and the process is served, as provided by law, within thirty days of the delivery." (Emphasis added.)
In their reply brief, the defendants argue that both the continuing course of treatment doctrine and § 52-593a are inapplicable. The defendants argue that the continuing course of treatment doctrine is inapplicable because it only applies to the repose portion of § 52-584, and it is the discovery portion of § 52-584 to which Kachainy has failed to comply. The defendants argue that § 52-593a is inapplicable because the statute of limitations commenced on February 25, 2014, and consequently, even if process was delivered to the state marshal on September 30, 2016, that is well after the date that service should have been processed and, well after the additional thirty days provided under § 52-593a. The defendants further argue that count one is Kachainy’s claim about Kachainy’s alleged harm, not any alleged harm done to Williams, therefore, the discovery of an alleged harm to Williams is not helpful for purposes of determining when the statute of limitations should commence as a result of an alleged harm to Kachainy.
The issue for this court to determine is when the statute of limitations clock started to run on the plaintiff’s informed consent claim. This court must therefore determine at what point in time did Kachainy’s legal representative, Williams, have knowledge of facts that put her "on notice of the nature and extent of [Kachainy’s] injury, and that the injury was caused by the negligent conduct of" the defendants. Lagassey, supra, 268 Conn. 749.
Plaintiff’s informed consent claim is governed by the two-year statute of limitations in General Statutes § 52-584. Section 52-584 provides in relevant part: "No action to recover damages for injury to the person ... 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 ..." Our Appellate Court has "concluded that this statute imposes two specific time requirements on plaintiffs. The first requirement, referred to as the discovery portion ... requires a plaintiff to bring an action 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 second provides that in no event shall a plaintiff bring an action more than three years from the date of the act or omission complained of ... The three year-period specifies the time beyond which an action under § 52-584 is absolutely barred, and the three-year period is, therefore, a statute of repose." (Emphasis in original; internal quotation marks omitted.) Mollica v. Toohey, 134 Conn.App. 607, 612, 39 A.3d 1202 (2012).
In Lambert v. Stovell, 205 Conn. 1, 5, 529 A.2d 710 (1987), our Supreme Court held "where a patient seeks recovery against a physician based upon a lack of informed consent, he is bringing a ‘malpractice’ action as contemplated by § 52-584."
"When applying § 52-584 to determine whether an action was timely commenced [in accordance with the statute’s discovery requirement], [the Appellate Court] has held that an injury occurs when a party suffers some form of actionable harm ... Actionable harm occurs when the plaintiff discovers ... that he or she has been injured and that the defendant’s conduct caused such injury ... The statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof ... The focus is on the plaintiff’s knowledge of facts, rather than on discovery of applicable legal theories." (Internal quotation marks omitted.) Rosato v. Mascardo, 82 Conn.App. 396, 404-05, 844 A.2d 893 (2004).
The present case is similar to Burns v. Hartford Hospital, 192 Conn. 451, 460, 472 A.2d 1257 (1984), a case in which the Supreme Court affirmed a trial court’s decision holding that on a motion for summary judgment, § 52-584 was a bar to the plaintiff’s malpractice action. In Burns, the plaintiff was a minor who, in being treated for injuries suffered in an automobile accident, was administered fluids intravenously into his lower legs. Id., 452. The plaintiff became aware, by and through his mother and next friend, of the causal relation between the defendant’s alleged negligence, the insertion of contaminated intravenous tubes into the plaintiff’s leg, and the resulting harm of an infection, on November 10, 1975. Id., 457. Nevertheless, the plaintiff did not commence an action until almost three years later, on November 1, 1978, after his condition had worsened, causing muscle or tendon damage in the leg. Id., 453. Despite the plaintiff’s mother testifying that she did not become aware of any muscle or tendon damage until August 1977, the court held that the plaintiff was aware of an "actionable harm" or "injury" as contemplated by § 52-584 more than two years prior to commencing or filing the action. The court further held that "[t]he harm need not have reached its fullest manifestation before the statute begins to run." Id., 456-60.
In contrast to Burns, the Supreme Court in Catz v. Rubenstein, 201 Conn. 39, 50, 513 A.2d 98 (1986), set aside and remanded a trial court’s decision holding that on a motion for summary judgment, § 52-584 was a bar to the plaintiffs’ malpractice action. The plaintiff in Catz was told by the defendant physician in August 1979, that a breast lump was benign. Id., 40. In January 1980, the plaintiff discovered another lump and, after being seen by the defendant, was told that the lump was not serious. Id., 40-41. In April 1980, however, the lump had grown larger, and the defendant ordered a mammogram, which indicated a malignancy. Id., 41. The plaintiff brought a malpractice action on June 11, 1982, and conceded that she was aware that she had cancer in May 1980. Id. The plaintiff claimed, however, that the action was timely because she had been led to believe that the second growth was not related to the first, and that she did not discover that the first lump was related to her eventual cancer until April 1982, when she saw another physician. Id., 41-42. The court held that there remained a genuine issue of material fact "as to when [the plaintiff] discovered or in the exercise of reasonable care should have discovered the causal nexus, if any, between the metastasis of her cancer and the allegedly negligent conduct of the defendant." Id., 49.
In Lambert v. Stovell, 205 Conn. 1, 6-7, 529 A.2d 710 (1987), the Supreme Court, citing Burns and Catz, affirmed a trial court’s decision holding that § 52-584 was a bar to the plaintiff’s lack of informed consent claim. In Lambert, the defendant doctor performed an ankle fusion surgery on the plaintiff on June 1, 1977. Id., 2. The plaintiff was discharged from the hospital on June 10, 1977, but was readmitted on June 28, 1977, after the defendant discovered that the plaintiff had developed an ankle infection. Id. The plaintiff was informed about the infection by the defendant when he was rehospitalized. Furthermore, during July and August of 1977, the defendant discovered, and told the plaintiff, that there was a non-union at the fusion site. Id. As a result of this disclosure, the plaintiff sought a second opinion on August 23, 1977, from Dr. Howard Rosen of New York City, who confirmed the fact that there was an infection in the ankle and a non-union of the joint, both of which would require further treatment. Id. The plaintiff commenced suit on March 5, 1980, based on the doctrine of informed consent, alleging that the defendant had not sufficiently informed him of the material risks and consequences of the surgery, and testified that had he been aware of any such risks, including infection and nonunion, he would have refused to consent to surgery. Id., 3-6. The plaintiff also testified, however, that he acquired actual knowledge of the infection and non-union in August 1977. Id., 6. The court held, despite the plaintiff’s assertion that § 52-584 should be tolled until he discovered all the information the defendant was allegedly obligated to disclose, that: "the plaintiff had actual knowledge of infection and non-union, two allegedly undisclosed, material risks that ... would have caused him to refuse surgery. He therefore was aware of circumstances indicating that he had suffered a form of ‘actionable harm’ and should have discovered his injury at that time." Id., 6-7.
Our Supreme Court in Lagassey v. State, supra, 268 Conn. 749 succinctly summarizes when the statute of limitations clock starts ticking pursuant to § 52-584 as follows: "The limitation period for actions in negligence begins to run on the date when the injury is first discovered or in the exercise of reasonable care should have been discovered. See General Statutes § § 4-148(a) and 52-584. In this regard, the term ‘injury’ is synonymous with ‘legal injury’ or ‘actionable harm.’ ‘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. Catz v. Rubenstein, supra, 201 Conn. at 44, 513 A.2d 98. A breach of duty by the defendant and a causal connection between the defendant’s breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence; they are therefore necessary ingredients for ‘ "actionable harm." Id. Furthermore, "actionable harm" may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another. Id., at 47, 513 A.2d 98. In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run; a party need only have suffered some form of "actionable harm." Id., at 43, 45, 513 A.2d 98. Finally, the determination of when a plaintiff in the exercise of reasonable care should have discovered "actionable harm" is ordinarily a question reserved for the trier of fact. Taylor v. Winsted Memorial Hospital, supra, 262 Conn. at 810, 817 A.2d 619."
Consistent with the standard established in Burns, Catz, and Lambert, and summarized in Lagassey this court finds that Kachainy, by and through her adoptive mother and next friend, Williams, discovered an "actionable harm" as contemplated by § 52-584 more than two years prior to starting this action. Yale and Wagner have provided as part of the motion for summary judgment, Exhibit A, a deposition of Williams, in which, she explains how, prior to February 25, 2014, she discovered the change of Kachainy’s birth control, and how, on February 25, 2014, she learned of Kachainy’s pregnancy:
"Q. So when did you first learn that Kachainy had switched from Depo to the oral pills? "A. [Williams] Kachainy had ... [A] nursing agency come in to pour her meds twice a week ... But when Kachainy moved out, the nurse went where [Kachainy] was living at and started pouring her meds [there] ... [The nurse] had, if I’m not mistaken, told me that- asked me did I know that Kachainy was taking birth control pills. I said, no, I do not know nothing about it. She said she’s on birth control pills. I said I knew nothing about it. That’s when I knew that she was taking them. Q. Okay. A. And then when I asked Kachainy about it, she told me, yeah, she was taking them ... Ex. A, Williams Dep., 45:17-46:11 Q. Okay. And when did the nurse tell you that [Kachainy] was taking birth control pill[s]?Id., 46:22-46:23.
A. I don’t remember exactly when. But whenever she was taking them, I asked Kachainy about it afterwards. Kachainy told me, Yes, I was taking them but I kind of missed some of them. I said, What do you mean you kind of missed some of them? She says, I kind of missed eight of them ...Id., 46:25-47:7.
Q. Okay. A. So next thing I know after that, she was pregnant.
Q. Okay. So that conversation happened before she became pregnant?
A. About the?
Q. About missing eight pills?
A. Missing eight, yes.
Q. And tell me about the February 2014 meeting where you learned that Kachainy was pregnant?Id., 47:15-47:24.
***
A. [Williams] We went into a room ... and everybody’s seated down. I almost already knew what was going to happen before they even said what was going to happen. I think it was [a clinic employee that] says, Kachainy wants to talk to you about something. And she says, Kachainy, do you want to tell your mom or do you want me to tell your mom?
So [Kachainy] says, I’ll tell her. I says, Tell me what? I already just about knew what she was going to tell me. She says, I have a surprise for you. I said, What kind of surprise? She says, I’m pregnant.Id., 49:20-50:8.
Williams’ testimony demonstrates that she learned of the allegedly negligent act, the change in the birth control medication, at some point between July 2013 and February 2014, and that she learned of the alleged harm, Kachainy’s pregnancy, at the very latest, on February 25, 2014, at the meeting where Kachainy told Williams she was pregnant. Indeed, the record further demonstrates through Williams’ testimony that, prior to being told at the February 2014 meeting that Kachainy was pregnant she knew Kachainy was pregnant: "I think it was [a clinic employee that] says, Kachainy wants to talk to you about something. And she says, Kachainy, do you want to tell your mom or do you want me to tell your mom? So [Kachainy] says, I’ll tell her. I says, Tell me what? I already just about knew what she was going to tell me. She says, I have a surprise for you. I said, What kind of surprise? She says, I’m pregnant." (Emphasis added.) Id., 49:20-50:8. Thus, the meeting, which occurred on February 25, 2014, is the very latest date when Williams could have learned Kachainy was pregnant.
In summary, sometime between July 2013 and February 2014, prior to February 25, 2014, Williams knew that Nurse Wagner had switched Kachainy from Depo-Provera to Ortho-Cyclen. This is the act that forms the basis of the plaintiff’s informed consent claim. And, as of February 25, 2014, Williams knew that Kachainy was pregnant, which is the alleged harm. Therefore, as of February 25, 2014, Williams was aware of "[a] breach of duty by the defendant and a causal connection between the defendant’s breach of duty and the resulting harm to the plaintiff." Lagassey, supra, 268 Conn. 748.
Moreover, in addition to the evidence submitted by the defendants in support of their motion, the evidence submitted by Kachainy in opposition to the motion, further demonstrates that Williams had discovered the negligent act brought about by Yale’s and Wagner’s conduct and discovered an actionable harm brought about by said negligent act, by no later than February 25, 2014. Kachainy has provided redacted medical records from her doctor’s visits, which shows (1) the change in birth control occurred on July 10, 2013: "[Kachainy] has decided that she does not want depo anymore but is interested in trying [oral contraceptive pills]," Ex. A, (2) Kachainy’s desire to have a baby a few days after the change in birth control: "[T]hought she may want to start OCPs but now has decided that she does want a baby," Ex. B; (3) Williams being informed on February 25, 2014, of Kachainy’s pregnancy: "[The Medical staff was] able to support in imparting the news to [Williams]," Ex. C; and, (4) the multiple doctor’s visits that occurred between July 10, 2013, when the birth control was changed, and February 25, 2014, when the pregnancy was revealed, during which time, Kachainy was not placed back on Depo-Provera.
"[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document’s] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings ... Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be ... Additionally, in considering a motion for summary judgment, [i]t is within the court’s discretion whether to accept or decline [to accept] ... supplemental evidence." (Citations omitted; internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn . 905, 52 A.3d 732 (2012). Kachainy has submitted redacted medical records from her doctor’s visits and Yale and Wagner have submitted deposition testimony of Williams, these exhibits have been submitted without certification or authentication, and as such, may lack "the necessary indicia of reliability required for a summary judgment determination." Torrenti v. Kancir, Superior Court, judicial district of New Haven, Docket No. CV-07-5012366-S (December 19, 2007, Holden, J.). In this matter, however, neither Kachainy nor Yale or Wagner have objected to any of the evidence presented. The Supreme Court has stated, "[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003). Therefore, this court will review and consider Kachainy’s, and Yale’s and Wagner’s evidence in ruling on the present motion. Prior to reviewing either Kachainy’s or Yale’s and Wagner’s evidence, the court must determine if the evidence is admissible. "A motion for summary judgment shall be supported by appropriate documents, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and other supporting documents." Practice Book § 17-45(a). "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).
As previously discussed, the discovery portion of § 52-584 begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof. See Lagassey v. State, supra, 268 Conn. 749; Burns v. Hartford Hospital, supra, 192 Conn. 460. Thus, in the present case, the statute of limitations would not begin to run on September 30, 2014, when the baby was born- the fullest manifestation of Kachainy’s pregnancy- but, rather, on February 25, 2014, when Kachainy’s pregnancy was discovered. Thus, to comply with the discovery portion of § 52-584 Kachainy was required to commence this action no later than February 25, 2016; however, the action was not commenced until October 3, 2016. Yale and Wagner have therefore met their burden of establishing that there is no genuine issue of material fact that count one is barred by § 52-584, and, accordingly, Yale and Wagner are entitled to judgment as a matter of law.
Kachainy relies on Angersola v. Radiologic Associates of Middletown, P.C., 330 Conn. 251, 193 A.3d 520 (2018), and argues that both the discovery and repose time requirements of § 52-584 have been tolled under the continuing course of treatment doctrine. Kachainy’s reliance on Angersola is misplaced. The plaintiffs in Angersola, appealed from the judgment of the trial court, which granted the motions to dismiss filed by the defendants, on the ground that the plaintiffs failed to commence their action within the five-year repose period of our state’s wrongful death statute, General Statutes § 52-555. Id., 254-55. The plaintiffs first claimed that the trial court incorrectly concluded that compliance with that repose provision is a prerequisite to the court’s jurisdiction over the action. They further claimed that the trial court improperly resolved disputed jurisdictional facts without affording them an opportunity either to engage in limited discovery or to present evidence in connection with their contention that the repose period had been tolled by the continuing course of conduct doctrine or the continuing course of treatment doctrine. Id., 255.
General Statutes § 52-555 provides in relevant part: "(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 ..."
Thus, the issues before the court in Angersola, were 1) whether compliance with the repose provision of § 52-555 is a prerequisite to the court’s jurisdiction over the action; and 2) whether the continuing course of conduct doctrine or continuing course of treatment doctrine are applicable to the five-year repose provision in § 52-555. The court analyzed whether the repose portion of § 52-555 had been tolled under the continuing course of treatment doctrine or the continuing course of conduct doctrine. Id., 255. In the present case, the issue here is whether, under the discovery portion of § 52-584, Kachainey’s action is time barred. The court does not reach the issue of whether the continuing course of treatment doctrine is applicable here because "as a matter of law, [the continuing course of treatment doctrine applies] only to the repose portion of the statute and not to the discovery portion. The discovery portion addresses the plaintiff’s knowledge of the injury and not the defendant’s act or omission. Once the plaintiff has discovered [the] injury, the statute begins to run. Moreover, after the discovery of actionable harm, the policy behind [the continuing course of treatment doctrine] ... is no longer served." (Citations omitted; internal quotation marks omitted.) Mollica v. Toohey, supra, 134 Conn.App. 614. The court concluded in Mollica that "the continuing course of conduct doctrine was unavailable to toll the statute of limitations, because there was no dispute that the plaintiffs became aware of their injuries ... in 2001." Id., 614.
In the present case, there is no dispute that Williams knew of an "actionable harm" on February 25, 2014, and failed to comply with the discovery portion of § 52-584 by commencing this action later than February 25, 2016.
As previously discussed, § 52-584 imposes two specific time requirements on a plaintiff. Mollica v. Toohey, supra, 134 Conn.App. 612. The first requirement, referred to as the discovery portion, requires a plaintiff to bring an action 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. Id. The second requirement, referred to as the repose portion, provides that in no event shall a plaintiff bring an action more than three years from the date of the act or omission complained of. Id. Kachainy has failed to meet the discovery time requirement of § 52-584, therefore, this court need not decide whether the present action meets the other time requirement of § 52-584, the repose requirement, thereby making the continuing course of treatment doctrine inapplicable. See Rosato v. Mascardo, supra, 82 Conn.App. 399 ("[t]he issue that we address ... is whether either [the continuing course of conduct doctrine or the continuing course of treatment] doctrine applies to toll the statutory period after the plaintiff has discovered her injury. We ... hold that neither doctrine is applicable ...") (Footnote omitted); see also Villa v. Sport Hill Chiropractic, Superior Court, judicial district of Fairfield, Docket No. 389722 (November 28, 2003, Levin, J.) (granting motion for summary judgment even though plaintiff’s action "was brought within the three-year [repose] period prescribed by General Statutes § 52-584" because plaintiff failed to comply with two-year discovery period of § 52-584). Moreover, § 52-593a is inapplicable because the statute of limitations period had run by the time Kachainy delivered to a state marshal the process that was to be served. Kachainy has not demonstrated the existence of a genuine issue of material fact, and accordingly, the defendants are entitled to judgment as a matter of law.
CONCLUSION
For the foregoing reasons, there is no genuine issue of material fact that count one of Kachainy’s complaint is barred by the two-year statute of limitations set forth in § 52-584. Accordingly, Yale’s and Wagner’s joint motion for summary judgment is granted.