Opinion
UWYCV156026376
02-24-2017
David Carda et al. v. Alliance Medical Group, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #197
Barbara Brazzel-Massaro, J.
INTRODUCTION
The instant action was filed by way of writ, summons and complaint dated January 26, 2015 by the plaintiffs, David Carda and Shari Carda naming as defendants Alliance Medical Group, Inc., Zhongqiu John Zhang, M.D., Waterbury Hospital, Daniel Tuvin, M.D., and Nathan Lafayette, M.D. The complaint is a claim of medical malpractice. It involves the treatment of David Carda at Waterbury Hospital. He received laparoscopic surgery for diverticulitis. The plaintiff alleges the defendants are liable for medical malpractice involving the laparoscopic surgery. In particular, the plaintiff alleges that on February 23, 2013 he was discharged from the hospital and thereafter was readmitted because he had sustained an injury to the ureter during the laproscopic surgery. In February 2016, the plaintiffs moved to cite in Dr. David Knight as a defendant because he was present and approved Mr. Carda's discharge even though his signs and symptoms were indicative of a transected ureter. Despite the plaintiff's abnormal medical signs the defendant released him from the hospital and thereafter he was readmitted for the transected ureter which required additional surgeries and complications which will require medical care in the future.
FACTUAL BACKGROUND
The plaintiff, David Carda, suffered from a condition called diverticulitis, an inflammation of his colon. As a result of condition Dr. Zhang recommended that he undergo a surgical procedure to remove the affected portions of the colon. (Laparoscopic sigmoidectomy). This operation was performed at Waterbury Hospital on February 18, 2013 by Dr. Zhang and a resident, Dr. Tuvin. The plaintiff remained in the hospital until February 23, 2013 at which time he was scheduled for discharge. On the day of the discharge Mr. Carda was examined by Dr. Lafayette and Dr. Knight. Dr. Zhang was not available to examine Mr. Carda and Dr. Knight was the attending physician on call and covering for Dr. Zhang. Three days after discharge Mr. Carda was re-admitted because he had signs of a transected ureter. The plaintiff suffered as a result of the transected ureter and alleges that Dr. Knight as the attending physician at the time of discharge was negligent and failed to exercise the degree of care, skill, or diligence employed by a general surgeon. The plaintiff did not originally include Dr. Knight as a defendant in this action. It was not until February 17, 2016 that the plaintiff filed a motion to cite in Dr. Knight. Service was made on counsel for Dr. Knight on February 24, 2016. The operative complaint was the Third Amended and Revised Complaint.
The defendant has filed a motion for summary judgment arguing that the plaintiffs' claims against Dr. Knight are time barred by the three-year period of repose and the two-year statute of limitations of Connecticut General Statutes § 52-584. The plaintiffs have filed an objection and the plaintiffs have filed a reply. The matter was heard at short calendar on February 21, 2017. At the short calendar argument the defendant conceded that the three-year period for the filling of the complaint is no longer an issue because the plaintiff obtained an extension and has timely filed for the three-year period. The parties argued as to whether the claim is barred by the two-year statute of limitations.
DISCUSSION
" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). Accompanying the motion " the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates, No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and " [t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. 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]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). " When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue . . ." Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
" 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).
As a threshold issue, the court must determine the admissibility of the evidence provided by the parties. In particular, the defendant contends that the affidavit of the plaintiff submitted in the reply is a " sham affidavit" because it contradicts the testimony provided by the plaintiff in his deposition. The plaintiff argues that the affidavit simply clarifies the statements of the plaintiff.
A sham affidavit is " an offsetting affidavit that is submitted in opposition to a motion for summary judgment when the affidavit contradicts the affiant's prior sworn deposition testimony." In re Citx Corp., Inc., 448 F.3d 672, 679 (3rd Cir. 2006). " [A sham affidavit is an] affidavit that contradicts clear testimony previously given by the same witness, [usually] used in an attempt to create an issue of fact in response to a motion for summary judgment." (Internal quotation marks omitted) Id. In DiPietro v. Farmington Sports Arena, 123 Conn.App. 583, 2 A.3d 963 (2010), the court found that a subsequent inconsistent affidavit should not be disregarded but that it creates a question of fact. The court noted that the usual method to address an affidavit that the party contends is contradictory is to point to the statements but it is not to preclude testimony. Id., 617. The DePietro court also addressed the consideration of an affidavit after the deposition for purposes of amplifying prior deposition testimony as the plaintiffs indicate they have done in this action. Such consideration of the affidavits as a means of supplementing the deposition testimony is permissible. Citing Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 112 (2nd Cir. 1998), Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1030, 376 U.S. App.D.C. 330 (D.C. Cir. 2007). To determine that the affidavit is inconsistent with the deposition testimony requires that the court compare and determine whether the information in the affidavit is inconsistent with the deposition testimony. Such a decision as to inconsistency is better left to the jury as part of their determination of credibility and believability. As such and consistent with the court ruling below as to the motion for summary judgment, the court will not find that the affidavit is a sham affidavit.
The motion for summary judgment alleges that the seminal date for purposes of the two-year statute was the very day of the discharge or within the next three days when the plaintiff was re-admitted as a result of the failure of the discharging physicians to take note of the signs and symptoms that the plaintiff was suffering from a transected ureter. The plaintiffs have argued that although they were aware of the failure to diagnose on February 23, 2013 they had no specific knowledge that Dr. Knight was the attending physician who was responsible for the premature discharge. In particular, the plaintiffs have argued that the discharge summary and the hospital notes for the time of discharge did not include Dr. Knight in any capacity. In fact, the plaintiff argues that even though it was eventually discovered that Dr. Knight along with Dr. Lafayette were the two medical doctors that reviewed the plaintiff's physical condition before discharge, there was no indication that Dr. Knight was even present at discharge, never mind the attending physician who approved the discharge. The defendants rely upon the deposition testimony of Mr. Carda when he responded to direct questions about the presence of Dr. Knight and his examination of Mr. Carda. Mr. Carda was deposed on a number of occasions beginning in October of 2015 a time after the deposition of Dr. Lafayette where he identified Dr. Knight for the first time as being present for the discharge. It appears that not until the deposition of Dr. Lafayette in June of 2015 was there any information available that placed Dr. Knight as a treater of Mr. Carda before discharge. Mrs. Carda also testified that prior to July 2015, they were not aware of the involvement of Dr. Knight.
The discharge notes include Dr. Nathan Lafayette's examination notes and were signed off by Dr. Zhang.
The defendants contend that the deposition testimony clearly demonstrates that on February 23, 2013 the plaintiff was well aware of the presence, examination and opinions of Dr. Knight relating to his discharge. The plaintiff counters with the lack of information about Dr. Knight. The plaintiff contends that despite the responses in the deposition, they were unaware of the involvement of Dr. Knight until the deposition of Dr. Lafayette who for the first time provided his name to the plaintiffs. The defendants contend this is not truthful because the plaintiff responded to questions about Dr. Knight which demonstrate their knowledge of his involvement. These counter positions of the parties highlight the genuine issue of material fact as to when and how did the plaintiffs become aware of sufficient " actionable harm" on the part of Dr. Knight. The question of when the plaintiff should have discovered that Dr. Knight was part of the medical team on February 23, 2013 or any time relevant to the treatment is a question for the trier of facts. Thus, there is a genuine issue of material fact as to when the plaintiffs became aware that they had suffered an actionable harm as a result of the actions of Dr. Knight who was the attending physician on the day of discharge. The motion for summary judgment as to Dr. Knight is denied.