Opinion
No. CV-01-0182783 S
June 6, 2005
MEMORANDUM OF DECISION RE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
This medical malpractice action, brought by Mary Grey and Lee Grey, was commenced by Writ Summons and Complaint dated February 15, 2001 with a return date of March 13, 2001, alleging negligence and loss of consortium against Stamford Health Systems, Inc., Stamford Hospital, Stamford Radiology Associates, P.C. (SRA) and Arnold Schwartz, M.D., a radiologist. Defendant Schwartz is employed with defendant Stamford Radiology Associates, P.C. which is a defendant under an agency theory. Similarly, defendant Schwartz is alleged to be the agent of Stamford Health Systems, Inc. and Stamford Hospital, both of which are defendants by virtue of this agency theory as well.
Specifically, Count One alleges negligence against Stamford Health Systems, Inc. under an agency theory. Count Two alleges loss of consortium on behalf of Mary Grey's husband, Lee Grey against Stamford Health Systems, Inc. Count Three alleges fraudulent concealment against Stamford Health Systems, Inc. Count Four alleges negligence against Stamford Hospital under an agency theory. Count Five alleges loss of consortium against Stamford Hospital. Count Six alleges fraudulent concealment against Stamford Hospital. Count Seven alleges negligence against Arnold Schwartz, M.D. and Stamford Radiology Associates, P.C. Count Eight alleges loss of consortium against Arnold Schwartz, M.D. and Stamford Radiology Associates, P.C.
The core conduct complained of is the alleged misreading of the plaintiff's mammograms in 1996 and 1997 by Defendant Schwartz, which readings allegedly missed the presence of a tumor or an increase in tissue density which should have triggered additional testing and identified the presence of cancer. In December 1998, the plaintiff was diagnosed with breast cancer and has since undergone various treatments for same.
By motion dated, November 29, 2004, the defendants Schwartz and Stamford Radiology Associates, P.C. moved for summary judgment on the basis that there is no genuine issue of material fact as to whether the statute of limitations has run, thus barring the plaintiff's claims. Similarly, by motion dated April 1, 2005, defendants Stamford Health Systems, Inc. and Stamford Hospital moved for summary judgment on the same grounds.
At oral argument, all parties agreed that insofar as the last negligent act complained of occurred in August 1997, absent a tolling of the statute of limitations, the suit was not commenced within the three-year period required under the repose section of the statute of limitations imposed pursuant to CGS § 52-584. The defendants argue that there is no basis upon which to find the statute tolled. The plaintiff counters that there are three separate and distinct bases upon which to find the statute was tolled until at least December 1998, the date of diagnosis. Specifically, she relies upon: (1) the continuing course of conduct doctrine; (2) the continuous treatment doctrine and (3) fraudulent concealment by the defendants of the negligence. If any of these three bases applies, the suit was timely filed.
In November 1999, the plaintiff's then counsel filed a motion pursuant at CGS § 52-190a(b) requesting the automatic 90-day extension of the statute of limitations, for purposes of determining whether a good faith basis for the complaint of medical malpractice existed. It is unclear and no explanation is offered as to why the complaint was not served for well over a year after the filing of the extension request.
For the reasons set forth below, the motions for summary judgment are GRANTED.
Facts
The plaintiff devotes a substantial portion of her opposition papers to the facts surrounding and the evidence regarding the alleged negligence by the defendants. For purposes of this motion, whether there was negligence in 1996 or 1997 is not at issue and therefore the court does not include the significant detail set forth by the plaintiff.
The plaintiff Mary Grey began having mammograms taken by Stamford Imaging Center in 1994. The Stamford Imaging Center is operated by defendant Stamford Hospital, which in turn is owned and operated by defendant Stamford Health Systems, Inc. The radiologists who work at the Stamford Imaging Center are employed by SRA, and include defendant Arnold Schwartz, M.D. Between 1994 and November 1998, the plaintiff had no less than 7 mammograms performed at and read by doctors at the Stamford Imaging Center. Defendant Dr. Schwartz reviewed the mammography films for the plaintiff in 1994, 1995, 1996 and 1997. Other films were interpreted by other radiologists. Since he last reviewed the 1997 mammogram, Schwartz has had no contact with the plaintiff or her treatment. He reviewed the 1997 mammogram and reported his conclusions to the plaintiff's referring physician on or about August 7, 1997. The plaintiff was notified that her mammogram "did not show any sign of cancer, according to the radiologist's interpretation." In her affidavit, the plaintiff indicates that she met with Dr. Schwartz immediately after the films were taken and he told her "everything was fine."
The plaintiff returned to the Stamford Imaging Center in November 1998. The radiologist reviewing the mammogram identified a lesion in the left breast and recommended a biopsy. The biopsy revealed the presence of a cancerous tumor, for which the plaintiff has since undergone various treatment regimens to include surgery and chemotherapy. She was diagnosed with cancer on December 14, 1998.
The gravamen of the plaintiff's complaint is that Dr. Schwartz negligently misread her 1996 and 1997 mammograms, in that he failed to see an increase in density and the growth of what was later identified as a cancerous lesion. She offers the affidavit of Dr. Pamela Marcus, a board-certified diagnostic radiologist, with a specialty in mammography. Dr. Marcus opines that "Dr. Schwartz violated the standard of care" in both his reading of the 1996 and 1997 mammograms. She further opines that his "failure to detect the suspected malignancy in the 1997 mammogram of Mary Grey's left breast, when it was highly visible, amounted to a gross departure from the standard of care."
At his deposition, Dr. Schwartz essentially stands by his original opinion, that the 1996 and 1997 mammograms are not indicative of cancer or that they would require additional tests. He did acknowledge the presence of a density in the 1997 film though stated that he did not find anything suspicious about the density.
Standard of Review
A party seeking summary judgment has the burden of demonstrating the absence of any genuine issue of material facts which, under applicable principles of law, entitle him to judgment as a matter of law. PB § 17-44; Appleton v. Board of Education, 254 Conn. 205 (2000). Conversely, the party opposing such a motion must provide an evidentiary foundation to show the existence of a genuine issue of material fact. Id. 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).
"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 particularly 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).
Continuing Course of Conduct Doctrine and Continuous Treatment Doctrine
The defendant claims that this action is barred by the statute of limitations applicable to medical malpractice, CGS § 52-584. Section 52-584 reads in pertinent part: "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, . . . hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered . . . except that no such action may be brought more than three years from the date of the act or omission complained of . . ." Here, the question is whether the suit was brought within the three-year period of repose.
Both the continuing course of conduct and continuous treatment doctrines are recognized mechanisms by which the statute of limitations might be tolled. Sherwood v. Danbury Hospital, 252 Conn. 193 (2000); Blanchette v. Barrett, 229 Conn. 256, 276 (1994). While their applicability and analysis of their applicability may well overlap, especially in the medical malpractice context, the two doctrines are distinct. Blanchette, 229 Conn. at 276.
A. The Continuous Course of Treatment Doctrine
The continuous treatment doctrine was first recognized in a medical malpractice context in Giambozi v. Peters, 127 Conn. 380 (1940). There, the Court held:
[t]he term malpractice itself may be applied to a single act of a physician or surgeon or, again, to a course of treatment. The Statute of Limitations begins to run when the breach of duty occurs. When the injury is complete at the time of the act, the statutory period commences to run at that time. When, however, the injurious consequences arise from a course of treatment, the statute does not begin to run until the treatment is terminated.
Id. at 385. "The policy underlying the continuous treatment doctrine seeks to maintain the physician/patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure." Blanchette, 229 Conn. at 276. The cessation of treatment has been defined as follows:
So 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. That does not mean that there must be a formal discharge of the physician or any formal termination of his or her employment. If there is nothing more to be done by the physician as to the particular injury or malady which he or she was employed to treat or if he or she ceases to attend the patient therefor the treatment ordinarily ceases without any formality.
Blanchette, 229 Conn. at 274-75, quoting, Schmit v. Esser, 183 Minn. 354, 358 (1931).
The determination of whether the physician and patient relationship has terminated involves a variety of factors to include: the subjective view of the parties as to whether the relationship has terminated; the length of the relationship; the frequency of the interaction; the nature of the physician's practice; whether the physician had prescribed a course of treatment for or was monitoring the condition of the patient; whether the patient was consulting with another physician concerning the same injury, illness or condition; and whether the patient was relying upon the physician's advice. Blanchette, CT Page 9679 229 Conn. at 278 (1994).
With respect to defendant Schwartz, there can be no claim that the treatment extended beyond August 7, 1997. There is no dispute that Dr. Schwartz had no contact with or involvement in the treatment of the plaintiff after that date. The plaintiff cannot rely upon the continuing course of treatment doctrine to toll the statute of limitations with respect to her claims against Dr. Schwartz. See, Neuhaus v. Decholnoky, Dkt. No. CV96 1053565 (February 5, 2003) (Lewis, JTR) ( 34 Conn. L. Rptr. 188); Holzmaier v. Associated Internists of Danbury, Dkt. No. 31 73 86 (May 4, 1998) (Radcliffe, J.) ( 22 Conn. L. Rptr. 194) (Continuing course of treatment doctrine did not apply where the only treatment provided by the defendant was the reading of an X-ray and there was no further conduct by the doctor between the time of the X-ray interpretation and the diagnosis of cancer).
Further, insofar as the plaintiff's claims against Stamford Health Systems, Inc. and Stamford Hospital are based solely on the allegation that Dr. Schwartz was acting as their agent, nor can she rely upon the continuing course of treatment doctrine to toll the statute of limitations with respect to her negligence count against these defendants.
At oral argument on the instant motions, plaintiff's counsel did not agree with the assertion of counsel for Stamford Health Systems, Inc. (SHS) and Stamford Hospital, that if the case against Dr. Schwartz is barred on statute of limitations grounds, then so is the case against them. Indeed, there was significant disagreement as to whether the agency theory advanced in the plaintiff's complaint reached SHS, Inc. and Stamford Hospital by virtue of any conduct other than that of Dr. Schwartz. While counsel for the plaintiff argued that the general allegations of negligence "by the agents, employees, servants etc." of SHS or Stamford Hospital is sufficient to encompass acts of SRA, a fair reading of the complaint renders a different conclusion. SRA is nowhere alleged to be the agent of SHS or Stamford Hospital. Had the plaintiff intended to allege and rely on such an agency theory, she certainly could have and should have pled it. See, PAC v. Town of Southington, Dkt. No. CV 94 0067026 (Dec. 19, 1996) (Dranginis, J.) (While a party does not have to plead the elements of agency, the complaint must adequately apprise the defendants of the agency alleged to exist.); Mlynarczyk v. Smith, Dkt. No. X03 CV 00 0503096 (Aug. 7, 2001) (Aurigemma, J.) (Allegation of apparent authority/agency must be specifically pled). In any event, given the court's decision as to both Dr. Schwartz and SRA, the issue is not outcome determinative.
With respect to defendant Stamford Radiology Associates, the analysis is a little different. The plaintiff continued to have mammograms interpreted by radiologists with SRA as late as November 1998. The question therefore is whether her return in 1998 amounts to a "continuing course of treatment." For the following reasons, as a matter of law, the court finds that it does not.
The Court first notes that the policy behind the doctrine is to preserve a physician/patient relationship during the course of a treatment; that such a goal is in the best medical interests of the patient. Thus, if an act of negligence occurs during the course of treatment, it is good policy to extend or toll the period by which an action must be brought until that course of treatment is concluded. This admirable public policy has little to no application in a situation such as the one presented here. The relationship here is not the traditional physician/patient relationship. The services being performed were of a discreet nature and involved the reading of diagnostic tests, the results of which were sent to the plaintiff's treating physician. The individual doctor who performed the services was determined by availability on any given day. With respect to each mammogram performed, the "treatment" was concluded when the physician's role in that treatment concluded. Here, it was upon rendering the results of the mammogram to the referring physician. The mere fact that the plaintiff returned to SRA on an annual (or more often) basis does not transform the role that SRA played in her ongoing treatment. See, White v. Bridgeport Radiology Associates, Docket No. 259604, 10 Conn. L. Rptr. 229 (September 28, 1993) (McKeever, J.) (The reading of an X-ray by a radiologist is a single, one-time event.)
Therefore, with respect to each of the plaintiff's counts, the continuing course of treatment doctrine cannot be relied upon to toll the statute of limitations.
Continuing Course of Conduct Doctrine
Alternatively, in order for the continuing course of conduct doctrine to toll the statute of limitations:
there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . "Where we have upheld a finding that a duty continued to exist after the cessation of the `act or omission' relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act." Fichera v. Mine Hill Corp., supra, 207 Conn. 209-10 (no evidence to support continuing duty on part of defendant after property sold).
Blanchette v. Barrett, 229 Conn. 256, 275 (1994). The policy considerations for this doctrine are similar to those enunciated with respect to the continued treatment doctrine. Golden v. Johnson Memorial Hospital, 66 Conn.App. 518, 526 (2001). Specifically, the continuing course of conduct doctrine reflects the policy that "during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and yet be remedied." Id. at 525.
With respect to the continuing course of conduct doctrine, the court must determine "if there is a genuine issue of material fact with respect to whether the defendant: (1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) continually breached that duty." Witt v. St. Vincent's Medical Center, 252 Conn. 363, 375 (2000) (emphasis added). The core issue in this matter is the second question: whether there was a continuing duty to the plaintiff that was related to the original wrong.
Since all three must be established, the failure to establish a material issue of fact as to any of these would make summary judgment appropriate. The defendants concede that there is a genuine issue of fact as to whether there was an initial tortious act, that is, did Dr. Schwartz misinterpret the mammograms. However, the defendants argue that there is no issue as to whether a continuing duty to the plaintiff existed. If the defendants are correct, summary judgment may enter notwithstanding the question of fact regarding the underlying alleged negligence.
On this issue, such a duty will only be found where there is either a "special relationship" which can be relied upon to create the duty or some later wrongful conduct that relates to the initial wrong upon the plaintiff Blanchette, 229 Conn. at 275. Here, the plaintiff alleges both a "special relationship" with the defendants as well as a subsequent wrong which related back to the initial misdiagnosis. The defendants dispute both.
1. Special Relationship
Preliminarily, the Court notes that it has found no appellate decision in the medical malpractice context in which the "special relationship" required in order to establish an ongoing duty is discussed, let alone, found to exist. Thus, there is virtually no guidance as to what might constitute a "special relationship" thereby triggering this ongoing duty. Clearly however, the relationship must be something out of the ordinary and of such a level to defeat the very sound and entrenched policies behind the statute of limitations.
As a result, were this case to proceed to trial, there is little authority for purposes of devising a jury instruction defining for the jury a "special relationship" that would toll the statute of limitations.
"There are two principal reasons generally given for the enactment of a statute of repose: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose." Neuhaus v. DeCholnoky, 83 Conn.App. 576, 593 (2004), quoting Sanborn v. Greenwald, 39 Conn.App. 289, 305 (1995).
To summarily defeat the defendant's motions, the plaintiff relies on Blanchette wherein, the Supreme Court noted that the continuing course of conduct doctrine is "conspicuously fact-bound." Blanchette, supra at 276. This is particularly so when the allegation is that there existed a "special relationship" between the parties so as to give rise to the ongoing duty. Id. However, "[t]he existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand," Golden, citing Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998). For purposes of this determination, the Court accepts as true the plaintiff's factual allegations in support of the argument that a "special relationship" existed. The question is not whether factually such a relationship existed, but whether, as a matter of law, given the facts alleged, there was such a relationship.
The oft-cited and above-quoted language which defines when an ongoing duty may be found to have existed first appeared in the Supreme Court's decision in Fichera v. Mine Hill Corp., 207 Conn. 204 (1981). As support for its pronouncement that either a "special relationship" or a "later wrong" might create an ongoing duty, the Court first cited Giambozi. As noted earlier, Giambozi was a medical malpractice case in which the "continuing course of treatment doctrine" was relied upon to create an ongoing duty. Giambozi did not discuss the continuing course of conduct doctrine anywhere. A fair reading of Fichera therefore is that the Court was using the continuing course of treatment doctrine as merely an example of how an ongoing duty might be established. No other reference or cite to cases involving a "special relationship" are included in Fichera from which this Court might gain guidance.
The Fichera court also cites Gigilo v. Connecticut Light and Power, 180 Conn. 230, 242 (1980), a product liability case in which a continuous course of conduct was found in view of the ongoing contact between the plaintiff and the product seller regarding defects and problems with the product. While not so specifying, this case appears to be the support for the "later wrongful conduct" aspect of finding a continuing duty.
Since Fichera, the Supreme Court has repeated that the continuing course of conduct doctrine is available in the medical malpractice context, and in two circumstances have found it to be applicable. Blanchette, supra; Sherwood, supra. However, as indicated earlier, in neither the Blanchette case nor the Sherwood case was the ongoing duty premised upon a "special relationship."
In Sherwood, while the Supreme Court included the oft-repeated reference to either a "special relationship" or "some later wrongful conduct of a defendant related to the prior act" as a basis to find the ongoing duty, it decided Sherwood without discussion of the plaintiff's "special relationship" claim. Sherwood, 242 Conn. at 203, n. 10. The same is true of Blanchette. In Blanchette, the Court held that the facts of the case supported a finding that the statute of limitations was tolled under either the continuous treatment doctrine or the continuing course of conduct doctrine. However, no discussion of, or reliance upon, the "special relationship" aspect of the continuous course of conduct doctrine was included.
In the absence of any controlling case law on the issue, the plaintiff relies upon language in Fichera which suggests that a fiduciary relationship between the parties would be sufficient to establish a "special relationship." In Fichera, although the court noted that "the plaintiffs do not claim any relationship with the defendants that would create a duty continuing after the purchase of the lots other than that based upon unfulfilled promises to construct various improvements upon the land . . ." the Court nonetheless analyzed the parties' relationship to determine whether it is analogous to that of a "fiduciary" such that an ongoing duty to disclose fraudulent representations existed. The Court found none based upon the facts of that case.
Thus, under Fichera, it appears that a fiduciary relationship is the type of relationship contemplated through which an ongoing duty to the plaintiff might be established. With this as her premise, in a rather circular argument, the plaintiff attempts to transform the physician/patient relationship, which concededly existed on August 7, 1997, into something different, something "special" for purposes of establishing an ongoing duty as between the defendants and the plaintiff. The fatal flaw in the plaintiff's argument is that the physician/patient relationship, in various contexts, has long been considered a fiduciary relationship. See Rosenfield v. Rogin, Nassau, Caplan, Lassman H., 69 Conn.App. 151 (2002) (the relationship between a patient and a physician is demarcated by the fiduciary relationship of trust and confidence, which continues to develop as the service is provided.) Konover, 228 Conn. at 222 n. 11; Starrett v. Spencer, No. CV94-0140926, (Super.Ct. Nov. 29, 1995). As such, the law already recognizes the special nature of the patient/physician relationship and did so when the determination to have a limitation on actions against physicians for negligent care was passed. Renaming the relationship "special" or "fiduciary" does not advance the inquiry and would simply render the statute of limitations meaningless. Clearly, what is required is more than the already acknowledged relationship that exists between a physician and a patient. See Neuhaus v. Decholonoky, Dkt. No. CV 96 015 3565 (June 5, 2002) (Adams, J.)
Rather than defining a fiduciary relationship with precision and in such a manner to exclude new situations, the Supreme Court has left open the possibility of a fiduciary relationship being established in a variety of situations in which there is a justifiable trust confided on one side and a resulting influence on the other. Elm City Cheese Co. v. Federico, 251 Conn. 59, 99 (1999). A fiduciary relationship has been described as: a relationship "characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other." (Citations omitted.) Dunham v. Dunham, supra, 322. See also, Konover Development Corp. v. Zeller, 228 Conn. 206, 219 (1994).
In offering this something more, the plaintiff argues:
The defendants here — with their superior knowledge, skill and expertise in interpreting mammograms and detecting cancer — had a duty to represent [the plaintiff's] interests, in this case, her health. There was a bond of trust and confidence — [the plaintiff] had the utmost confidence in the radiologists, which the Defendants must have realized given her decision to travel from Vermont to maintain her direct relationship with them.
This is the very duty that gives rise to the underlying negligence claim, had it been brought in a timely fashion. It cannot now be the duty which somehow becomes "continuing" for purposes of tolling the statute of limitations.
[The plaintiff] was actively involved in her healthcare, and she made it her practice to interact with and become directly involved with her treatment by the Defendants. This special relationship supports the Defendant's continuing duty.
The court is at a loss to see how the plaintiff's feelings towards the defendants, regardless of how powerful they may have been, makes this case different from that of any other case against a physician brought by a former patient. Presumably, people choose doctors because they have superior knowledge in the field of health care and just as likely, people enjoy a level of confidence in their chosen physicians. While it is admirable that the plaintiff was active in her own healthcare, such a unilateral interest on her part cannot, as a matter of law, create an ongoing duty to her that does not otherwise exist under the law. In fact, to hold otherwise could have a significant and pervasive chilling effect on the nature of physician/patient relationships. Public policy favors full and frank discussions between a patient and a physician. Fostering a mutually interactive relationship serves the individual patient, makes the physician's task easier and is otherwise in society's best interest. See e.g. Home Insurance Co. v. Aetna Life and Casualty Co. 235 Conn. 185, 195 (1995) (full disclosure by a patient to a psychiatrist will make treatment more effective). If the plaintiff is inviting this court to tell the medical profession that if a patient develops a special feeling of trust and confidence towards them, they may no longer enjoy the protections of the statute of limitations for negligence actions, the court declines the invitation.
Thus, the plaintiff has not established a genuine issue of material fact as to whether a special relationship existed between herself or any of the defendants.
2. Later Wrongful Conduct Relating to the Original Wrong
Next, the Court must determine whether an ongoing duty was created by some later wrongful conduct by the defendant which related to the original wrong.
As noted by the Appellate Court in Golden v. Johnson Memorial Hospital, 66 Conn.App. 518 (2001), the only case against a physician similarly situated to the defendants in this case, specifically a pathologist, in which the continuing course of conduct doctrine was applied is Witt v. St. Vincent's Medical Center, 252 Conn. 363 (2000). In Witt, although the allegedly missed diagnosis had occurred 11 years earlier, there was evidence that the defendant, at the time of the negative diagnosis, actually had concerns that the patient may be developing the very disease that was later diagnosed. The Court found that if this fact was established, it would be the basis for a continuing duty to warn the plaintiff, which, in turn raised a question of fact as to whether that duty, if found to exist, was breached.
In this case, Witt is unavailing to the plaintiff in her efforts to establish a material issue of fact as to whether an ongoing duty existed. Here, there is no evidence that Dr. Schwartz had any similar types of concerns in 1996 or 1997 when he read the plaintiff's mammograms. Indeed, to date he does not believe the mammograms show any abnormalities which would cause him to render a different opinion than the one he rendered in 1996 and 1997. Finally, to the extent the plaintiff relies upon Witt for the proposition that the defendants had an ongoing duty to disclose as the plaintiff puts it, "the misdiagnosis," her reliance is misplaced. She states: "Dr. Schwartz had an ongoing duty to correct his misinterpretation of [the plaintiff's] 1996 and 1997 mammograms." (Plaintiff's Mem. at 18.) She is wrong.
"[T]he continuing course of conduct is not the failure of the alleged tortfeasor to notify the plaintiff of his wrongdoing." Connell v. Colwell, 214 Conn. 242, 255 (1990). Indeed, the Blanchette court held that a duty to inform would only arise after the physician learned that the diagnosis was incorrect. Blanchette, 229 Conn. at 284. "To apply any other rule, the court reasoned, would effectively eliminate any statute of limitations in cases involving misdiagnosis." Id. "Thus, although a continuing duty may be imposed as a matter of law beyond the time periods set for filing a claim pursuant to §§ 52-584, a continuing duty must rest on the factual bedrock of actual knowledge." Neuhaus v. DeCholonoky, 83 Conn.App. 576 (2004)
In order to avoid this rationale, the plaintiff argues that notwithstanding defendant Schwartz' statement that to this day, he would not change his interpretation of the 1996 and 1997 mammograms, the jury might not believe him; might determine that he actually saw abnormalities; that he was in fact monitoring an increase in density on her mammograms; that he had concerns about such increases and therefore, as was the case in Witt, had an ongoing duty to warn the plaintiff
The gravamen of the complaint is that Dr. Schwartz misread the mammograms. Ironically, the gravamen of this argument, made in an effort to save this cause of action, is that he did not misread the mammograms, he read them correctly but failed to advise the plaintiff. However, there is simply no evidence with which to give this issue to the jury. And to find such an issue on the theory that the jury might not believe the defendant alone, would again, render the statute of limitations a nullity.
In fact, the case presented here is substantially different from any of the scenarios under which the Appellate or Supreme Courts have found the continuing course of conduct doctrine to apply in the medical malpractice context. For example, in Sherwood, an ongoing duty was found to extend the statute of limitations because the defendant discovered after a surgical procedure that the plaintiff had received untested blood and the court found a duty to advise the plaintiff of the risks associated with receiving blood which might contain the AIDS virus. In Cross v. Huttenlocher, 185 Conn. 390 (1981), an ongoing duty was found to warn of potentially dangerous side effects of a prescription, where the defendant was aware that the prescription would continue to be taken into the future. And in Barrett, an ongoing duty to monitor was found following a negative diagnosis where there was an ongoing physician/patient relationship. Of note, all of these cases relate to a treating physician, not a radiologist, pathologist or other medical professional who provides the much more discreet service of lab or data analysis.
For these reasons, the court finds that there is no genuine issue of material fact as to whether the continuing course of conduct doctrine tolled the statute of limitations in this matter. As a matter of law, the defendants did not have a "duty that remained in existence after the commission of the original wrong."
Fraudulent Concealment
Lastly, the plaintiff argues that she has established a genuine issue of material fact as to the defendants' fraudulent concealment of this cause of action. In order to establish fraudulent concealment as a basis upon which to toll the statute of limitations, the plaintiff must establish:
that the [defendant] had fraudulently concealed the existence of [her] cause of action and so had tolled the statute of limitations, the [plaintiff] had the burden of proving that the [defendant was] aware of the facts necessary to establish this cause of action . . . and that [he] had intentionally concealed those facts from the plaintiff]." Bound Brook Assn. v. Norwalk, 198 Conn. 660, 665, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S.Ct. 81, 93 L.Ed.2d 36 (1986).
Connell v. Colwell, 214 Conn. at 251. While the court recognizes that "summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions," Id., citing United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 376, 260 A.2d 596 (1969), the party opposing summary judgment must establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists. Id. at 252, citing Multi-Service Contractors, Inc. v. Vernon, 193 Conn. 446, 452, 477 A.2d 653 (1984).
Here, as in Connell, the plaintiff has failed to establish any such factual predicate concerning the defendant's alleged fraudulent concealment. "Fraud is not to be presumed, but must be strictly proven. The evidence must be clear, precise, and unequivocal." Puro v. Henry, 188 Conn. 301, 308, 449 A.2d 176 (1982). The actions of the defendant must be "directed to the very point of obtaining the delay of which he afterward seeks to take advantage by pleading the statute." Connell, 214 Conn. at 251, quoting, Lippitt v. Ashley, 89 Conn. 451, 480 (1915).
In support of this claim, the plaintiff relies upon the 1998 reading of the mammogram in which the cancerous tumor is detected by Dr. Zimmerman, a radiologist with SRA. Specifically, plaintiff points out that the report of the radiologist does not include a comparison of the prior years' mammograms. She further offers expert opinion that it would be within the standard of care to compare prior mammograms if they are available. This omission, the plaintiff argues, is evidence that the prior years' mammograms were read by Dr. Zimmerman; that Dr. Zimmerman must have seen the tumor in the earlier mammograms; that Dr. Zimmerman at that point recognized the misreading by Dr. Schwartz; that Dr. Zimmerman than determined to conceal the malpractice by omitting any reference to the earlier mammogram, thereby fraudulently concealing the cause of action for purposes of delaying its discovery so that the statute of limitations might later be relied upon.
Dr. Marcus' affidavit indicates that a radiologist should compare mammograms where they are available for comparison. This statement, though not entirely clear, appears to be in relationship to the monitoring for a change in condition. The affidavit does not indicate whether, when a tumor or other lesion is readily apparent, it is necessary or customary to compare prior mammogram readings. In Dr. Marcus' deposition testimony regarding the 1998 mammogram report, there is no testimony regarding the failure to include reference to a comparison with prior mammograms nor is there any opinion offered on the subject in connection with the 1998 report of mammogram. Notwithstanding, and in view of the fact that Dr. Marcus' entire testimony has not been provided to the court, for purposes of this motion however, the court reads the affidavit to mean that a comparison should have been made at the time of the 1998 mammogram.
This court sees no basis upon which to distinguish the holding of the Connell case from the matter at hand. In Connell, the plaintiff alleged that the defendant had misread a prostate examination, and thereby misdiagnosed, the presence of prostate cancer. The defendant was diagnosed in 1982 and alleged a tortious misreading of the prostate examinations for each year from 1976 through 1981. The plaintiff alleged that in 1982, at the time of diagnosis, the defendant affirmatively told her that the decedent's prostate had always been firm, which was, the plaintiff argued an averment that there was nothing in the decedent's prior medical history to suggest that an earlier referral to a urologist was required. Thus, the plaintiff argued, the statement raised a genuine issue of material fact as to whether the defendant "knew of the alleged negligence and affirmatively concealed it, or knew of the negligence and failed to disclose it." Id. at 250. The appellate court disagreed finding no factual predicate for fraudulent concealment. Id. Indeed, the court went further: "Even if it can be said that the defendant misrepresented the contents of the decedent's medical records during the December 1982 telephone conversation with the plaintiff, there was no evidence submitted to the trial court from which it could be inferred that the defendant misrepresented those facts with the intent necessary to constitute fraudulent concealment. Id.
Here, there is no allegation or evidence of any affirmative act of misrepresentation in the first instance. Rather, it is the omission of the reference to the earlier mammogram from which this plaintiff argues an inference can be drawn that the alleged earlier misreading was discovered, and from this inferred discovery, a further inference that ill motive or fraudulent intent should be drawn. On these "facts," even if presumed accurate, a directed verdict would enter for the defendants. Batick v. Seymour, 186 Conn. 632, 647 (1982) ("The test [for summary judgment] is whether a party would be entitled to a directed verdict on the same facts."); Connell, supra, at 247.
For the foregoing reasons, this action is barred by the three-year repose section of the statute of limitations contained in CGS § 52-584. Plaintiff Lee Grey's action for loss of consortium, being wholly derivative of Mary Grey's action is similarly barred. Hopson v. St. Mary's Hospital, 176 Conn. 485, 494 (1979). Judgment is entered in favor of the defendants.
SO ORDERED
Kari A. Dooley, Judge