Opinion
CV116026149S
09-27-2016
Scout Dowd, PPA Lucienne Carrier and Kevin Dowd v. Connecticut Children's Medical Center et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #251
A. Susan Peck, Judge
The plaintiffs, Scout Dowd, ppa Lucienne Carrier and Kevin Dowd, initiated this medical malpractice action against the defendants, Paul R. Mitchell, M.D., and his practice group, Children's Eye Care, P.C., on September 27, 2011, and against the defendant, Connecticut Children's Medical Center (CCMC), on September 30, 2011. The operative complaint is the revised complaint dated July 21, 2014, and it alleges the following.
The current motion before the court is defendant CCMC's motion for summary judgment (#251).
Lucienne Carrier delivered twins, Sobie and Scout Dowd, at twenty-four weeks on July 29, 2008, at Hartford Hospital. Due to the twins' prematurity, they were transferred to the neonatal intensive care unit at CCMC. Sobie and Scout had numerous medical problems due to their extreme prematurity, including an eye condition that occurs in premature babies called retinopathy of prematurity (ROP), which is a vascular disease of the retina. Both Sobie and Scout were diagnosed with ROP several months after their births.
On October 2, 2008, Dr. Peter Walden, a pediatric ophthalmologist who consults at CCMC, diagnosed Scout with early ROP. Dr. Walden scheduled Scout for a follow-up evaluation in two weeks. Scout was subsequently re-evaluated on October 10, 2008, by Dr. Walden's partner, Dr. Paul Mitchell, sooner than her previously scheduled appointment. Dr. Mitchell determined that Scout's ROP had progressed but stated to the parents that there was " no popcorn." Dr. Walden saw Scout on October 13, 2008, and determined that Scout's ROP had progressed even further and required immediate evaluation by a retinal specialist. CCMC transferred Scout the same day to Yale New Haven Hospital for evaluation and treatment. Scout was evaluated by Dr. Kathleen Stoessel, a retinal specialist, that afternoon and Dr. Stoessel performed laser surgery the next day on October 14, 2008.
Dr. Mitchell testified at his deposition that popcorn means " neovascularization in clumps. New blood vessels that grow in a clump. They look like little flowers, little popcorn kernels, " which Dr. Mitchell did not see at his October 10, 2008 evaluation of Scout.
Dr. Stoessel monitored Scout thereafter and at some point " the blood vessels progressed in a poor manner and she required further treatment." In early November 2008, Dr. Stoessel recommended that Scout be seen by a vitreoretinal surgeon for possible further surgery. Scout was transferred from Yale to the Children's Hospital of Philadelphia where Dr. Maguire performed a vitrectomy in early November 2008. Although Dr. Maguire said that the surgery, which had the potential benefit of stopping the blood vessels from detaching from the retina, had gone well, the prognosis was poor. Scout had two full retinal detachments and despite the surgeries, the progression of ROP in Scout resulted in near-total blindness in both eyes.
Count one of the revised complaint sounds in medical negligence against CCMC and count two sounds in medical negligence against Dr. Mitchell and Children's Eye Care, P.C. The plaintiffs claim that Scout's health care providers caused her injuries, in that they: (a) failed to adequately and properly care for, treat, diagnose, supervise and transfer Scout; (b) failed to properly diagnose ROP; (c) failed to properly treat ROP; (d) failed to obtain timely treatment for Scout; (e) failed to properly document the ophthalmic examination on October 10, 2008; (f) failed to recognize the severity of the ROP; (g) failed to timely refer Scout for treatment of her ROP; (h) allowed the ROP to progress; (i) misrepresented his ability to diagnose, care for, treat ROP, and that the plaintiffs, to their detriment, relied on this misrepresentation; (j) failed to promulgate and/or enforce rules, regulations, standards and protocols for the care, treatment, and transfer of patients with ROP; (k) misrepresented its ability to diagnose, care for, and treat ROP, and that the plaintiff, to her detriment, relied on this misrepresentation; (l) failed to timely transfer Scout to a hospital that could provide adequate and proper treatment; (m) allowed Scout to remain at CCMC even though CCMC did not have the skill or expertise to treat ROP; and (n) failed to have an appropriate protocol and procedure in place for the evaluation, treatment and transfer of patients with ROP.
Subparagraph (n) is alleged against CCMC only.
CCMC, in its answer, denies all allegations of negligence and leaves the plaintiffs to their proof of the remaining allegations. CCMC has asserted a special defense that the plaintiffs' claims are barred by the statute of limitations pursuant to § 52-584.
On April 1, 2016, CCMC filed a motion for summary judgment on the ground that this action is time-barred by the statute of limitations set forth in § 52-584. The motion is accompanied by a memorandum of law and exhibits. The plaintiffs filed a unified objection, memorandum of law, and exhibits on May 13, 2016. CCMC thereafter filed a reply and exhibits on June 1, 2016, and the plaintiffs filed a supplemental memo on June 8, 2016. This matter was argued on June 3, 2016.
CCMC provided the following exhibits: (A) excerpts of deposition testimony of Lucienne Marie Carrier; (B) excerpts of deposition testimony of Paul R. Mitchell, M.D.; (C) excerpts of deposition testimony of Peter G. Walden, M.D.; (D) excerpts of deposition testimony of Kevin Thomas Dowd; (E) excerpts of deposition testimony of Kathleen M. Stoessel, M.D. (Vol. I); and (F) excerpts of deposition testimony of Kathleen M. Stoessel, M.D. (Vol. II).
The plaintiffs provided the following exhibits: (1) an affidavit of Lucienne Carrier; (2) an affidavit of Kevin Dowd; (3) an affidavit of Cynthia C. Bott; (4) excerpts of deposition testimony of Adam Peter Matson, M.D.; (5) excerpts of deposition testimony of Victor C. Herson, M.D.; (6) excerpts of deposition testimony of Kevin Thomas Dowd; (7) excerpts of deposition testimony of Peter G. Walden, M.D.; (8) excerpts of deposition testimony of Sandra I. Motta, M.D.; (9) excerpts of deposition testimony of James R. Gerace, P.A.; (10) excerpts of deposition testimony of Kathleen M. Stoessel, M.D. (Vol. II); excerpts of deposition testimony of Lucienne Marie Carrier; (12) excerpts of deposition testimony of Kathleen M. Stoessel, M.D. (Vol. I); and (13) excerpts of deposition testimony of Paul R. Mitchell, M.D.
CCMC provided the following exhibits: (A) excerpts of deposition testimony of Lucienne Marie Carrier; (B) excerpts of deposition testimony of Kathleen M. Stoessel, M.D.; and (C) excerpts of deposition testimony of Kevin Thomas Dowd.
SUMMARY JUDGMENT STANDARD
" [S]ummary 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 nonmoving party." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " 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).
" A trial court may appropriately grant a motion for summary judgment only when the affidavits and evidence submitted in support of the motion demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law." Catz v. Rubenstein, 201 Conn. 39, 48, 513 A.2d 98 (1986). " The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 320. " To 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
" Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). " Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
DISCUSSION
CCMC argues that the plaintiffs should have discovered actionable harm in October 2008, or by the latest, December 2008. The plaintiffs counter that they first learned on or after July 5, 2011, that a medical expert had opined that the breach of the standard of care by some of Scout's health care providers who treated her for ROP had caused her severe visual impairment. Before then, no doctor or health care provider had ever informed the plaintiffs, nor did the plaintiffs have reason to know, that any of Scout's health care providers had done anything wrong to cause her significant eye injuries.
General Statutes § 52-584, the law which governs the statute of limitations on actions alleging health care malpractice, provides in relevant part: " No action to recover damages for injury to the person . . . caused by negligence . . . 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 . . ." In the present case, because there is no question that the plaintiffs brought this action within three years of the date of the initial examination by Dr. Mitchell, the court's focus is on whether the plaintiffs brought this action within two years from the date when the plaintiffs discovered Scout's injury or, in the exercise of reasonable care, should have discovered her injury.
" When applying § 52-584 to determine whether an action was timely commenced, this court has held that an injury occurs when a party suffers some form of actionable harm." (Internal quotation marks omitted.) Wojtkiewicz v. Middlesex Hospital, 141 Conn.App. 282, 287, 60 A.3d 1028, cert. denied, 308 Conn. 949, 67 A.3d 291 (2013). " [T]he 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 . . . 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 . . . 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 . . . 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 . . . 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." (Emphasis added; internal quotations marks omitted.) Jackson v. Tohan, 113 Conn.App. 782, 787, 967 A.2d 634, cert. denied, 292 Conn. 908, 973 A.2d 104 (2009). " 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.) Mollica v. Toohey, 134 Conn.App. 607, 613, 39 A.3d 1202 (2012).
" As the preceding analysis reveals, a plaintiff's claim of medical malpractice will accrue once he or she discovers, or in the exercise of reasonable care should have discovered, that he or she suffered an actionable harm. The plain language of the statute does not, therefore, impose any specific affirmative duty on the plaintiff to investigate a potential claim of malpractice. Rather, the sole inquiry, in this context, is whether, in light of all relevant circumstances, the plaintiff exercised reasonable care in the discovery of his or her injury." Taylor v. Winsted Memorial Hospital, 262 Conn. 797, 805, 817 A.2d 619 (2003).
Because actionable harm does not occur until the plaintiff discovers an injury and causation, the court finds that a genuine issue of material fact exists as to when the plaintiffs had knowledge or in the exercise of reasonable care, should have had knowledge, of sufficient facts to bring a cause of action against the defendants.
In Lagassey v. State, 268 Conn. 723, 727, 846 A.2d 831 (2004), the plaintiff's decedent went to a hospital emergency room when he experienced back and abdomen pain due to a previously diagnosed aneurysm. While in the hospital's care, and after being administered a suppository, the decedent had a seizure, went into cardiac arrest, and died from a ruptured abdominal aortic aneurysm. The plaintiff was not charged with knowledge of actionable harm until two years later, when the plaintiff obtained an opinion of causation from a vascular surgeon. See id., 751-52.
Similarly, in the present case, although it is undisputed that the progression of ROP in Scout resulted in near-total blindness in both of her eyes, the statute of limitations does not begin to run until there is no issue of fact that the plaintiffs discovered, or should have discovered, a causal relationship between her blindness and the defendants' alleged malpractice. See Michaud v. Hauser, Superior Court, judicial district of New Haven, Docket No. CV-09-5030873-S, (September 5, 2013, Wilson, J.) (" statute of limitations does not begin to run until there is no issue of fact that [plaintiff] discovered or should have discovered a causal relationship between his heart attack and the defendants' alleged malpractice"). While it is undisputed that in December 2008, Scout was blind, the plaintiffs claim that they did not actually discover the cause of her injury until July or August 2011, when a medical expert opined that the breach of the standard of care by some of Scout's health care providers caused her severe visual impairment. Before then, no doctor or health care provider had ever informed the plaintiffs that any of Scout's health care providers had done anything wrong to cause her significant eye injuries. Likewise, the plaintiffs had no reason to believe any of the health care providers acted negligently. Thus, the issue is whether the plaintiffs, in the exercise of reasonable care, should have discovered the actionable harm in October 2008, or at the latest, December 2008, when the progression of ROP resulted in Scout's blindness. Because this question is disputed and CCMC has not met its burden in demonstrating that no genuine issue of material fact exists, it is an issue for the trier of fact to decide.
CCMC has not offered any evidence showing, as a matter of law, such as by judicial admission, that at any point the plaintiffs said they understood they had a medical malpractice case. CCMC argues that the plaintiffs knew or reasonably should have known well in advance of September 30, 2011, the date they filed this action, that an actionable harm had occurred. CCMC would have the court infer that from the statement made by Lucienne Carrier in December 2008, that " the game is kind of over, " collectively with the plaintiffs' knowledge of the nature of ROP due to the progression and treatment of the disease in Sobie, the plaintiffs' concern that Scout be monitored closely for ROP, and Scout's poor outcome after treatment, that the plaintiffs knew they had suffered actionable harm. A motion for summary judgment, however, cannot be granted based on inferences, which are for the trier of fact to make. See Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994) (summary judgment inappropriate based on inferences about state of mind). This type of inference would also be unreasonable. The quoted statement and totality of facts and circumstances, taken together, include no admission that the plaintiffs thought, let alone a judicial admission that they knew, that Scout's blindness was due to the defendants' negligence. The plaintiffs' awareness that Scout was blind does not, per se, place the plaintiffs on notice of a breach of the standard of care and resultant causal connection. See Mahoney v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV-09-5025134-S, (August 8, 2011, Bellis, J.) (although plaintiff was aware his heel was broken and thought that defendants had done something wrong with his care, there still existed a genuine issue of material fact as to when the plaintiff discovered actionable harm); see also Reich v. Lippman, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV-01-0166703-S (October 1, 2003, Alander, J.) (35 Conn.L.Rptr. 566, 568, ) (court found that parents of baby injured at birth could not reasonably have been expected to discover that defendant health care providers may have caused injuries until they received opinion from pediatric neurologist).
CCMC argues in its brief that " given their active involvement in Scout's treatment, prior involvement in Sobie's treatment, open dialogue with a physician, Dr. Stoessel, who expressed concerns regarding the timeliness of Scout's course of treatment at CCMC, and the actual discovery that Scout would suffer from near total blindness approximately two months later, the plaintiffs knew or reasonably should have known that there was an actionable harm in this case no later than December 2008."
CCMC's evidence fails to establish that the plaintiffs actually discovered that the defendants had caused Scout's actionable harm more than two years before they initiated this lawsuit. Regarding the plaintiffs' constructive knowledge, that " in the exercise of reasonable care [they] should have discovered" that Scout had suffered actionable harm, " Connecticut courts have not directly addressed the state of mind that a plaintiff must possess in order to commence the running of the statute of limitations under § 52-584. The standard, as stated in the statute, is the 'reasonable person' standard." McClellan v. William Backus Hospital, Superior Court, judicial district of New London, Docket No. CV-13-6016702-S, (October 15, 2014, Cole-Chu, J.).
The courts have held that the knowledge of a bad result is not evidence of actionable harm. See Mahoney v. Bridgeport Hospital, supra, Superior Court, Docket No. CV-09-5025134-S, (plaintiff thought something went wrong with his care, but he was not aware that the defendants breached a duty of care, or were the cause of injury to his heel and ankle until a medical expert made that conclusion). In addition, when a potential plaintiff questions the quality of care and takes steps to investigate whether he or she may have a cause of action, this too does not demonstrate that, as a matter of law, he or she knew or should have known of the existence of actionable harm.
For example, in Compton v. St. Francis Hospital & Medical Center, Superior Court, judicial district of Hartford, Docket No. CV-01-0809553-S (December 16, 2005, Miller, J.) (40 Conn.L.Rptr. 476, ), the mother of an infant with sickle cell anemia questioned and criticized the treatment her daughter received at St. Francis and the court found that her criticism was not necessarily evidence of the discovery of the injury. " Indeed, there is a difference between criticizing a hospital for not meeting a subjective standard of care and criticizing the hospital for being negligent in the legal sense . . . The defendants have thoroughly pointed out all the times that Hardy [the mother] questioned, criticized, and complained about [the daughter's] treatment at St. Francis. Hardy even went to speak with a lawyer about a possible legal action against the defendants. However, it is entirely conceivable that [Hardy] did complain about her daughter's treatment, and even listened to others complain about the treatment, and still did not understand or conclude that a breach of duty had occurred. If Hardy did not have knowledge that a legal breach of duty occurred, then she could not have knowledge of a causal connection between the supposed breach and any injury her daughter suffered. Because reasonable minds could differ about when Ms. Hardy 'discovered' what she believes was the defendants' professional negligence, this issue can only be resolved at trial." (Citation omitted.) Compton v. St. Francis Hospital & Medical Center, supra, 40 Conn.L.Rptr. 478-79, .
At oral argument and in its briefs, CCMC argues that the plaintiffs were educated in ROP due to their experience with Sobie, who also required laser surgery. The court notes that, just because the plaintiffs were informed about ROP with both Sobie and Scout, and had some familiarity with it, does not necessarily mean that the plaintiffs were well educated about the disease and thus reasonably should have known that Scout suffered an actionable harm by the time of her transfer to Yale on October 13, 2008. This type of inferential leap is unreasonable and far-fetched. Further, this was undoubtedly a period of high stress for the plaintiffs as they did not know what the future would hold for either of their premature twins. Whether the plaintiffs were in fact " educated" and, thus, reasonably should have known of the actionable harm in October 2008, is an issue for the trier of fact.
CCMC also argues that the plaintiffs' affidavits attached to their objection are nothing more than sham affidavits that are insufficient to create a genuine issue of material fact. The court disagrees. " The 'sham affidavit' rule refers to the trial court practice of disregarding an offsetting affidavit in opposition to a motion for summary judgment that contradicts the affiant's prior deposition testimony." Ross v. Dugan, Superior Court, judicial district of New London, Docket No. CV-10-6006404 (December 16, 2011, Cosgrove, J.) (53 Conn.L.Rptr. 167, 169, ). The court does not find that statements contained in the plaintiffs' affidavits clearly contradict their deposition testimony. In fact, there is no discrepancy between the plaintiffs' deposition testimony and their affidavits. Thus, CCMC's argument as to this issue has no merit.
" Actionable harm need not have reached its fullest manifestation or obviousness in order for the statute of limitations to commence running." McClellan v. William Backus Hospital, supra, Superior Court, Docket No. CV-13-6016702-S, . Here, however, CCMC has not met its burden of showing that there is no genuine issue of material fact as to when the plaintiffs first discovered actionable harm.
In short of a legally binding admission that the plaintiffs knew Scout had suffered a legal injury, meaning actionable harm, more than two years before this suit was initiated, what the plaintiffs knew and when they knew it, for statute of limitations purposes, are questions of material fact that preclude the granting of summary judgment. " If the question of when an injury occurred or . . . the date of the causal nexus between the plaintiff's injury and the defendant's alleged errors or omissions, is disputed, the issue of when the action accrues for purposes of determining whether the statute of limitations applies is a question of fact to be left to the jury." Milburn v. Danbury Hospital, Superior Court, judicial district of Danbury, Docket No. CV-12-6010045-S (January 14, 2015, Truglia, J.) (59 Conn.L.Rptr. 623, 625-26, ) . " [T]he plaintiff is entitled to his day in court for a factual determination of what he should have known and when he should have known it." (Internal quotation marks omitted.) Jackson v. Tohan, supra, 113 Conn.App. 790. Therefore, CCMC's motion for summary judgment must be denied.
CONCLUSION
Accordingly, for the foregoing reasons, CCMC's motion for summary judgment is denied.