Opinion
X06UWYCV146026830
08-15-2018
Lesly FAJARDO et al. v. BOSTON SCIENTIFIC CORP. et al.
UNPUBLISHED OPINION
ORDER RE MOTIONS FOR SUMMARY JUDGMENT, PLAINTIFFS’ EN 333, 334, 412 AND OBJECTIONS EN 358, & DR. JACOBS’ EN 336, 337, 338, 338.02, 373, AND OBJECTIONS 358
Court docket Entry Number.
TERENCE A. ZEMETIS, J.
Lesley Fajardo, LF, and Jairo Fajardo, JF, plaintiffs, and Dr. Lee D. Jacobs, M.D., Jacobs, move for cross summary judgments. Plaintiffs seek summary judgment on the Third Count, only, while Jacobs seeks summary judgment on all Counts, Third through Tenth inclusive, in the plaintiffs’ June 26, 2018 Amended Complaint. Each litigant objects to the others’ motion.
Jairo Farjado, spouse of Lesly Fajardo, asserts only a derivative loss of consortium claim. Consequently his claim’s viability is dependent on Lesly Fajardo’s claims. For ease of communication, this memo addresses only Lesley Fajardo’s claims.
Dr. Lee D. Jacobs was admittedly an employee of the co-defendant OB/GYN of Fairfield County, P.C., acting within the scope of his agency, Answer- Count 3-10, paragraph 1. OB/GYN’s alleged liability is vicarious and is dependent on a determination of Jacobs’ liability. For ease of communication, this memo addresses only Lee D. Jacobs’ liability.
EN 326.
Oral argument was held on August 14, 2018, long delayed by the parties’ requests for further discovery prior to briefing and argument. Jury selection, initially scheduled to begin on August 7, 2018 was delayed at counsels’ request until August 14, 2018 and delayed again until August 16, 2018 to permit the oral argument and the court to issue this order.
The argument and decision on the cross motions for summary judgment involving plaintiffs and defendant Boston Scientific Corporation have been deferred at the request of counsel to accommodate the jury selection process recognizing the evidentiary portion of the trial will commence after the Labor Day holiday recess on September 5, 2018.
The operative pleadings are: Amended Complaint of June 26, 2016, EN 326, Answer and Special Defenses of July 9, 2018, EN 335. No Reply to the Special Defenses was located. The Amended Complaint alleges harm to plaintiffs in ten counts, for LF Third through Sixth Counts and, for JF, Seventh through Tenth Counts. Jacobs’ Answer denies all allegations other than his status as a physician acting as the agent or employee of OB/GYN of Fairfield County, P.C. when interacting with LF. Jacobs asserts two Special Defenses: all counts are barred by the statute of limitations and Count 4, "Innocent Misrepresentation," fails to state a cause of action upon which relief can be granted and should be dismissed. LF filed no Reply to Jacobs’ Special Defenses, but asserts a tolling of the statutes of limitation by the doctrines of continuous treatment, continuing course of conduct, and/or fraudulent concealment in briefing these motions.
BASIS FOR THE MOTION
LF alleges: on December 15, 2010 Jacobs "caused to be implanted in plaintiff (LF) various of the Co-Defendant’s (BSC) Pelvic Mesh Products including but limited to a polypropylene mesh sling by Dr. Edward Paraiso, Paraiso," harming her. LF seeks compensation for resulting personal injuries suffered. JF, spouse of LF, seeks compensation for loss of consortium.
Complaint, Count Three, paragraph 11.
Plaintiffs seek compensation from Jacobs for harm caused by: lack of informed consent, innocent misrepresentation, negligent misrepresentation, and/or intentional misrepresentation.
LF moves for summary judgment on the Third Count, "Lack of Informed Consent."
Complaint, Count Three, paragraphs 16-20, inclusive.
Jacobs moves for summary judgment because: he had no duty to obtain LF’s "informed consent" for the implantation of BSC pelvic mesh products, he made no misrepresentations to LF about BSC’s pelvic mesh products or the procedure implanting those products and/or the statutes of limitation bars each claim.
FACTS
1. On March 26, 2010 LF, a longtime OB/GYN patient of Jacobs, consulted with Jacobs about her gynecological/urological concerns: "patient complains of stress incontinence daily, very disruptive, she wants surgical repair," EN 334, Ex. A.
2. Jacobs diagnosed Grade II cystocele and Grade II rectocele, conditions associated with pelvic organ prolapse (POP), proposed and discussed repairs including "risks, benefits, and alternatives of sling/AP (anterior and posterior colporrhaphy ) discussed, all questions answered." Id., and referred LF to Dr. Edward Paraiso, M.D., urologist, to whom Jacobs had referred numerous similarly situated patients for consultation and evaluation for urological concerns, for urological evaluation of LF’s stress urinary incontinence (SUI). Colporrhaphy may be performed on the anterior (front) and/or posterior (back) walls of the vagina. An anterior colporrhaphy treats a cystocele or urethrocele, while a posterior colporrhaphy treats a rectocele. Read more:
A prolapse occurs when an organ falls or sinks out of its normal anatomical place. The pelvic organs normally have tissue (muscle, ligaments, etc.) holding them in place. Certain factors, however, may cause those tissues to weaken, leading to prolapse of the organs. A cystocele is defined as the protrusion or prolapse of the bladder into the vagina; a urethrocele is the prolapse of the urethra into the vagina. These are caused by a defect in the pubocervical fascia (fibrous tissue that separates the bladder and vagina). A rectocele occurs when the rectum prolapses into the vagina, caused by a defect in the rectovaginal fascia (fibrous tissue that separates the rectum and vagina). When a part of the small intestine prolapses into the vagina, it is called an enterocele. Uterine prolapse occurs when the uterus protrudes downward into the vagina. Read more: http://www.surceryencyclopedia.com/CeFi/Colporrhaphy.html#ixzz5OFogHBum
3. LF avers Jacobs convinced her to undergo a surgical procedure, A/P, and implantation of a mesh sling to treat her SUI. Jacobs recommended the sling, failed to offer alternatives, described the procedure as safe and quick and that he’d done this often on other patients acting with Dr. Paraiso, and the quick surgery would fix her SUI problem. She recalled most of Jacobs’ explanation was about the sling. Jacobs did not describe the risks associated with the implantation of mesh including chronic pain, dyspareunia or scarring or other complications. Jacobs recommended the mesh implant before LF had a urological consultation and Jacobs did not recommend I ask the urologist additional questions about the mesh implant because of Jacobs’ incomplete knowledge of mesh products. LF would not have consented to the mesh implantation had Jacobs accurately advised of the risks associated with mesh implantation, see LF’s July 5, 2018 Affidavit, EN 334, Ex. E, p 206-09.
4. On April 10, 2010 LF consulted with Paraiso. He diagnosed SUI and recommended LF consent to Paraiso surgically implanting a mid-urethral sling as a part of the solution to LF’s complaints of daily stress urinary incontinence. Paraiso testified he described the risks, benefits, and alternatives to the procedure and obtained LF’s oral "informed consent" to proceed with surgical repairs to both LF’s vaginal walls (colporrhaphy by Jacobs) and urethra (a sling implant by Paraiso) in a hospital surgical setting. Paraiso communicated this plan to Jacobs.
The midurethral sling is a narrow strap made of synthetic mesh or native tissue that is placed under the urethra. It acts as a hammock to lift or support the urethra and the neck of the bladder.
"Lesly has stress urinary incontinence secondary to urethral hypellnobility. Treatment options include Kegel exercises, biofeedback and transobturator sling were discussed. At this point she is leaning towards transobturator sling. She has indicated that she would like to perform a cystocele repair as well. We will schedule this in your office when it is convenient for you." Jacobs Tr., 88:18-89:1.
5. LF, in her July 5, 2018 affidavit, avers Dr. Paraiso offered no further explanation risks, benefits, or alternatives to the implant of the mesh product or the implant procedure, than had Jacobs. Id., paragraph 14.
6. LF signed Patient Consent Form, EN 338, Ex B & C, p. 65-67.
7. On December 15, 2010 Dr. Edward Paraiso, M.D., a non-party, urologist, and unaffiliated with any co-defendant, surgically implanted BSC pelvic mesh products, BSC mid-urethral Obstryx mesh Sling, in LF at the Bridgeport Hospital. On the same day, while LF was in the surgical theater and immediately before Dr. Paraiso implanted a BSC mesh sling, Jacobs performed the A/P repair. Paraiso was not present during Jacobs’ gynecological repair of LF’s vaginal walls and Jacobs, "scrubbed out"- left the surgical theater, before Paraiso entered to perform his urological repair with the implant of the BSC mid-urethral sling.
8. Jacobs was unaware of what kind of a sling Paraiso planned to implant in LF.
9. Following the December 15, 2010 surgery LF asserts she suffered harm due to the BSC Obstryx mid-urethral mesh implant performed by Paraiso.
10. LF makes no claim of harm arising from Jacobs’ colporrhaphy surgery.
11. On November 20, 2014 service of the writ of summons and complaint were served upon Jacobs.
STANDARD OF REVIEW OF SUMMARY JUDGMENT MOTIONS
"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 nonmoving party ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and [if the movant has met its burden] the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case ..." (Internal quotation marks omitted.) Dipietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012). Stuart v. Freiberg, 316 Conn. 809, 820-21 (2015). This evidentiary foundation must be demonstrated with counter-affidavits and concrete evidence. Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997). A party’s conclusory statements may not be sufficient to establish the existence of a disputed material fact, even if in affidavit form. Gupta v. New Britain General Hospital, 239 Conn. 574, 583 (1996).
The court "resolv[es] all ambiguities and draw[s] all factual inferences in favor of the party against whom summary judgment is sought." O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 37 (2nd Cir. 2003).
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806 (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 (1984).
Summary judgment is inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 11 (1994).
Supporting and opposing affidavits must be made on personal knowledge and must set forth such facts as would be admissible in evidence. PB § 17-46. Indeed, only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. Great County Bank v. Pastore, 241 Conn. 423, 436 (1997). Hearsay statements are insufficient to contradict facts offered by the moving party and if an affidavit contains inadmissible hearsay it will be disregarded. 2830 Whitney Avenue v. Heritage Canal Development, 33 Conn.App. 563, 568-69 (1994).
DISCUSSION
Counsel agree Logan v Greenwich Hospital Ass’n, 191 Conn. 282 (1983), and progeny, describe Connecticut law of informed consent. Before undergoing a procedure, in order to obtain a patient’s informed consent, the patient must be informed of "(1) the nature of the procedure, (2) the ‘risks’ and "hazards" of the procedure, (3) the ‘alternatives’ to the procedure, and (4) the anticipated ‘benefits’ of the procedure." Id., 292.
LF underwent two surgeries on December 15, 2010- a colporrhaphy by Jacobs and an implant of a mid-urethral sling by Paraiso. LF understood two surgeries were being performed: Jacobs performing the AP repair and Paraiso implanting the sling.
The physician performing the procedure at issue must obtain the patient’s informed consent, "Sherwood v. Danbury Hospital, 278 Conn. 163, 171 n. 8, 192, 194, 896 A.2d 777 (2006) (obligation to inform patient of risks of blood transfusion is owed by physician performing surgery and him "alone" [emphasis omitted] )." Torres v. Carrese, 149 Conn.App. 596, 623 (2014). And all disclosed medical experts agree Paraiso, not Jacobs, had to obtain LF’s informed consent for the implant of the mesh product.
Here, Paraiso performed the implant of the BSC mesh product of which LF complains. Paraiso had to obtain LF’s informed consent for the implant of the mesh product.
LF urges the court to impose a duty on Jacobs to obtain LF’s informed consent for Paraiso’s implant of the BSC mesh because Jacobs "assumed a duty" when, according to Jacobs’ 3/26/10 office note, the "risks, benefits, and alternatives of sling/AP surgery discussed, all questions answered."
See
The court rejects this request. Logan holds, "the principle that one who gratuitously undertakes a service which he has no duty to perform must act with reasonable care in completing the task assumed is not applicable" to a referring physician. Jacobs was a referring physician regarding the urological surgery performed by Paraiso. Jacobs is not alleged to have any vicarious liability for the conduct of Paraiso.
The duty rests upon the physician performing the procedure. The procedure is the mesh implant. Paraiso performed the implant. Paraiso, not Jacobs, had to obtain LF’s informed consent for the surgical implantation of the BSC mesh product.
There being no genuine issue of material fact in dispute and the movant entitled to judgment as a matter of law, judgment of the Third and Seventh Counts enters for the movant.
MISREPRESENTATION CLAIMS
LF asserts three misrepresentation claims against Jacobs: Fourth Count- "Innocent Misrepresentation," Fifth Count- "Negligent Misrepresentation," and/or Sixth Count "Intentional Misrepresentation."
Innocent misrepresentation has not yet been recognized by any Connecticut appellate court, nor any reported Connecticut trial court decision provided to the court, as a cause of action providing personal injury damages as claimed by LF/JF- i.e. economic or non-economic damages defined by C.G.S. 52-572h(a)(1) and (2) or other damages sought by plaintiff. The court grants with the defendant’s motion entering judgment for the Jacobs’ defendants on Fourth and Eighth Counts, i.e. the "Innocent Misrepresentation" claims.
Attorneys fees pursuant to CGS 52-240, punitive damages pursuant to 52-240B and common law, attorneys fees and punitive damages pursuant to CGS 42-110a (CUTPA), or other equitable or legal relief. Prayer for Relief, EN 326.
LF’s Complaint incorporates paragraphs 1-22 from the Third Count into Fifth and Sixth Counts. Paragraphs 17-20 allege:
17. Dr. Jacobs and OB/GYN of Fairfield County, P.C., knew or should have known of the experimental and unproven nature of these products.
18. The Defendants Dr. Jacobs and OB/GYN of Fairfield County, P.C., failed to properly advise the Plaintiff of the risks, benefits and/or alternatives associated with the surgical procedures that Dr. Jacobs and Dr. Edward Paraiso, performed on the Plaintiff including but not limited to the risks of using the Co-Defendant’s Pelvic Mesh Products.
19. The Defendants failed to advise the Plaintiff of the complication rates for these procedures and products.
20. The Defendants failed to inform the Plaintiff of his experience or lack thereof with these procedures and products.
Paragraph 17 alleges Jacobs knew or should have known of the experimental and unproven nature of these products (referring to mesh products designed to address POP and or SUI).
LF has disclosed no expert witnesses vis a vis Jacobs about this topic. Establishing Jacobs’ duty or the standard of care, i.e. what he knew or should have known about the mesh products, requires expert testimony. Establishing what Jacobs had to tell LF about mesh products, and whether that failure breached the standard of care, requires competent expert testimony. Medical negligence cases- even when framed as "negligent or intentional misrepresentation" if the alleged misrepresentation implicates the professional conduct, judgment, or competence of the medical professional, absent extraordinary circumstances not present here, require expert testimony to establish both the standard of care and that the breach of the same by the movants proximately caused plaintiffs’ alleged harm, Doe v. Yale University, 252 Conn. 641, 687 (2000). The plaintiffs have disclosed no such experts as to the movants.
Paragraph 18 alleges Jacobs failed to properly advise LF of the risks, benefits and alternatives "associated with the surgical procedures that Dr. Jacobs and Dr. Edward Paraiso performed on the plaintiff including but not limited to the risks of the use of the Co-Defendant’s Pelvic Mesh Products." This is an essential allegation of the informed consent cause of action addressed. The allegation is simply incorporated into the negligent and/or intentional misrepresentation claims against Jacobs.
Jacobs had no legal duty to advise LF of the risks, benefits, or alternatives associated with the surgical procedure being performed by Paraiso, mesh implantation. Jacobs has no legal duty to properly advise LF of risks, benefits, or alternatives associated with Paraiso’s surgery, see discussion and case citations above.
Paragraph 19 alleges Jacobs failed to advise LF of the complication rates for these procedures and products. Again, Jacobs had no legal duty to advise LF about procedures or products associated with Paraiso’s surgery. Nor is there evidence that Jacobs discussed BSC products with LF. To the extent these allegations implicate Jacobs’ professional skill, care, judgment, or competence, expert testimony establishing standard of care, breach and causation of harm would be necessary. "In order to establish the existence of a duty to inform, the plaintiff must show through expert testimony that ‘the customary standard of care of physicians in the same practice as that of the defendant doctor was to obtain the patient’s consent prior to performing any operation.’ ... Once the existence of the duty to inform has been established, the degree or extent of the disclosure necessary to satisfy the duty must be proven in accordance with the lay standard." Weidl v. Gfeller, 1992 WL 229214 (J.D. Hartford-New Britain, Sept. 3, 1992), citing Logan, supra ; Mason v. Walsh, 26 Conn.App. 225 (1991).
LF has not disclosed such expert testimony.
Paragraph 20 alleges Jacobs "failed to inform the Plaintiff of his experience or lack thereof with these procedures and products." These allegations implicate Jacobs’ professional skill, care, judgment, or competence, expert testimony establishing standard of care, breach and causation of harm would be necessary. LF has not disclosed such expert testimony.
LF’s Complaint also incorporates paragraphs 23-25 from the Fourth Count into the Fifth and Sixth Count (changing only the allegation from "innocently" to "negligently" to "intentionally" to fit the title of the Count). These paragraphs allege Jacobs misleading, misinforming and/or misrepresenting LF about "Co-Defendants (BSC) Pelvic Mesh Products":
23. Prior to the performance of the procedures by Dr. Jacobs on the Plaintiff, including the implantation of the Co-Defendants Pelvic Mesh Products in the Plaintiff by Dr. Edward Paraiso, Dr. Jacobs innocently misled, misinformed and misrepresented the quality, usefulness, risks and/or benefits of using the Co-Defendant’s Pelvic Mesh Products, as well as his experience and knowledge with regard to the same, for the express purpose of inducing the Plaintiff to agree to undergo the surgical procedures using the Co-Defendant’s mesh products.
24. In particular, in 2010, prior to the surgery, Dr. Jacobs advised the Plaintiff that use of the Co-Defendant’s Pelvic Mesh Products was perfectly safe and well established and not something to be concerned about. He failed to inform the Plaintiff of the lack of studies establishing the safety and efficacy of these products, their essentially experimental nature, and the fact that the true magnitude of the risks and consequences of these products or even their expected benefits was simply unknown.
25. In promoting the use of these products and procedures, Dr. Jacobs and OB/GYN of Fairfield County, P.C., failed to inform the Plaintiff of the high potential for serious complications and their effect on the Plaintiff’s quality of life if they did occur for the purpose of inducing the decision to agree to use the mesh products.
The parties agree Jacobs never discussed Boston Scientific Corporation products with LF.
Jacobs could not innocently, negligently, or intentionally mislead, misinform, or misrepresent the quality, usefulness, risks and benefits of using the Co-Defendant’s (BSC’s) Pelvic Mesh Products to LF (paragraph 23 of the Fourth, Fifth and Sixth Counts respectively) having never discussed BSC products with LF.
Jacobs could not then advise LF "that the use of the Co-Defendant’s Pelvic Mesh Products was perfectly safe and well established and not something to be concerned about." (paragraph 24 of the Fourth, Fifth and Sixth Counts respectively).
Jacobs could not promote the use of "these products" (BSC products) nor "fail to inform of the high potential for serious complications and their effect on the plaintiff’s quality of life" (paragraph 25 of the Fourth, Fifth and Sixth Counts respectively).
There being no genuine issue of material fact and Jacobs entitled to judgment as a matter of law, summary judgment enters for Jacobs’ defendants on Fourth- Tenth Counts.
Statute of Limitations
"The purposes of statutes of limitation include finality, repose and avoidance of stale claims and stale evidence ... These statutes represent a legislative judgment about the balance of equities in a situation involving a tardy assertion of otherwise valid rights: [t]he theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286, 322-23 (2014).
Connecticut General Statutes § 52-584 (applicable to medical negligence claims including "informed consent" claims ) contained two pronged limitations: a "discovery" limitation and a "repose" limitation.
Connecticut 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."
"Our Supreme Court has defined "injury" in § 52-584 to be an event that occurs when the plaintiff suffers actionable harm. Rivera v. Double A Transportation, Inc., supra, 248 Conn. at 26-27, 727 A.2d 204. In determining when a plaintiff has suffered actionable harm, a court must focus "on the plaintiff’s knowledge of facts, rather than on discovery of applicable legal theories." (Internal quotation marks omitted.) Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 (1987). "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." (Citations omitted; internal quotation marks omitted.) Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 (1986)." Tarnowsky v. Socci, 75 Conn.App. 560, 565 (2003), aff’d, 271 Conn. 284 (2004). "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." Wojtkiewicz v Middlesex Hospital, 141 Conn.App. 282, 287 (2013).
[I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period ... When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute. Cefaratti v. Aranow, 321 Conn. 637, 645-46 (2016).
The plaintiff alleges the act of omission complained of, i.e. failure to obtain informed consent in the Third Count, occurred on December 15, 2010 when Paraiso surgically implanted the BSC surgical mesh sling along her urethra.
Jacobs was served with the writ, summons, and complaint on November 20, 2014.
Jacobs was served greater than three years after the act or omission complained of occurred.
The Third Count, asserting lack of informed consent, was commenced outside the statute of limitations period. Plaintiffs’ remedy for such wrong, even if proved, is barred by operation of statute- if the statute is not tolled.
The misrepresentation claims, Fourth (innocent), Fifth (negligent), and Sixth (intentional) Counts, are governed by C.G.S. 52-577.
The statute Section 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues ... General Statutes § 52-577 provides: No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of. This court has determined that [§ ] 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs ... Moreover, our Supreme Court has stated that [i]n construing our general tort statute of limitations, General Statutes § 52-577, which allows an action to be brought within three years from the date of the act or omission complained of, we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred ... The three-year limitation period of § 52-577, therefore, begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury ... The relevant date of the act or omission complained of, as that phrase is used in § 52-577, is the date when the negligent conduct of the defendant occurs and not the date when the plaintiffs first sustain damage. When conducting an analysis under § 52-577, the only facts material to the trial court’s decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed. Piteo v. Gottier, 112 Conn.App. 441, 445-46 (2009). (Internal quotations omitted.) (Emphasis added.)
Dr. Jacobs allegedly misrepresented, by omission or commission, to LF- innocently, negligently, or intentionally, before Dr. Paraiso injured LF by implanting the Boston Scientific Obtryx Sling on December 15, 2010.
This lawsuit began well beyond the statutory three-year limitations period prescribed by C.G.S. § 52-577. The remedy is time-barred- if the statute is not tolled.
Plaintiffs have not filed a Reply to Jacobs’ Special or Affirmative Defense asserting the statutes of limitation bar these actions, but in their Objection to Jacobs’ motion the plaintiffs assert the doctrine of "continuous treatment" doctrine, "continuing course of conduct" doctrine, or "fraudulent concealment" tolls the statute of limitations.
CONTINUOUS TREATMENT DOCTRINE
"We have ... recognized, however, that the statute of limitations, in the proper circumstances, may be tolled under the continuous treatment ... doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date." (Internal quotation marks omitted.) Id. Under that doctrine, "[s]o long as the relation of physician and patient continues as to the particular injury or malady which [the physician] is employed to cure, and the physician continues to attend and examine the patient in relation thereto, and there is something more to be done by the physician in order to effect a cure, it cannot be said that the treatment has ceased." (Internal quotation marks omitted.) Id. " Cefaratti v. Aranow, 321 Conn. 637, 646, 138 A.3d 837, 843 (2016).
LF documents, through Jacobs’ office notes, she continued to treat with Jacobs, including for problems associated with her December 15, 2010 surgery. LF’s last examination with Jacobs occurred on July 26, 2012- Jacobs noted the surgery performed in 2010 in that office note.
A factfinder could determine the doctrine of continuous treatment tolled the statute of limitations. Summary judgment because of the operation of the statutes of limitations is inappropriate as a genuine issue of material fact exists.
The court will not address the other possible tolling doctrines because the finding of an issue of material fact as to one tolling doctrine would preclude the entry of a summary judgment based on an expiration of the statute of limitations.
HOLDING
As there is no genuine issue of material fact and Dr. Lee D. Jacobs, and derivatively OB/GYN of Fairfield County, P.C., are entitled to judgment as a matter of law, judgment enters in accordance for the movants on the Third through Tenth Counts, inclusive.
http://www.surceryencyclopedia.com/CeFi/Colporrhaphy.html#ixzz5OFsM1PV6
Gazo v. City of Stamford, 255 Conn. 245, 252, (2001).
Lambert v. Stovell, 205 Conn. 1, 5 (1987).