Opinion
No. HHB CV06 5000680
October 19, 2007.
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
The plaintiff Brenda Jackson has filed this medical malpractice action against the defendant Narendra Tohan, a surgeon. She alleges that Dr. Tohan breached the standard of care during a surgical procedure in October 2003 and perforated her bowel, causing her injury. The defendant has filed a special defense, alleging that the plaintiff's lawsuit was not brought within the statute of limitations. He has moved for summary judgment. For reasons stated herein, the court grants the motion.
THE STANDARDS FOR SUMMARY JUDGMENT
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, such that he is entitled to judgment as a matter of law. Id.
In ruling on a motion for summary judgment, the court's function is not to decide any disputed issues of material fact, but rather to determine whether any such issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts. Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).
THE UNDISPUTED FACTS
On October 24, 2003, the plaintiff Brenda Jackson underwent surgery to remove an ovarian cyst. The surgeon was Dr. Leena Shah, M.D., and the assistant was Dr. Narendra Tohan, M.D. The operative report was signed by Dr. Shah.
Immediately after the surgery, the plaintiff began to exhibit severe pain and other symptoms inconsistent with a successful surgery. She was "feeling terrible." Plaintiff's Depo., p. 62, line 12. Within a few days after October 24, the plaintiff met with another physician who informed the plaintiff that an exploratory laparotomy was necessary because it was suspected that the plaintiff's bowel had been resected (cut) during the first surgery.
The plaintiff underwent the second procedure on October 29, 2003, and the physicians discovered, as suspected and as the plaintiff had been so informed, that indeed her bowel had been injured during the first surgery. This medical complication was addressed during the second surgery and during an emergency third surgery on October 30.
By late November 2003 the plaintiff knew that something "had been done wrong" during the first surgery, Pl.'s Depo., p. 105, line 5. The plaintiff had been told by the doctors who repaired her bowel that whoever performed the first surgery had "messed up" and she felt that she needed to follow-up with an attorney. Pl. Depo., p. 105, lines 7-10, 19. Also by late November or early December, the plaintiff had permitted her fiancé to contact an attorney on her behalf.
The plaintiff subsequently commenced two separate lawsuits. The first was against Dr. Shah, commenced on April 29, 2005. The second was this action against Dr. Tohan, commenced on January 25, 2006. The lawsuit against Dr. Shah has been resolved. As to this action against Dr. Tohan, the defendant has filed a special defense that it was commenced after the expiration of the statute of limitations, and accordingly this defendant has moved for summary judgment.
THE STATUTE OF LIMITATIONS
Conn. Gen. Stat. § 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 . . .
There is no dispute that the bowel resection was sustained on October 23, 2003, nor that this action to recover damages was commenced on January 25, 2006, which is more than two years after the injury was sustained.
THE QUESTION OF "ACTIONABLE HARM"
The plaintiff argues that the term "injury" as used in Conn. Gen. Stat. § 52-584 is synonymous with "actionable harm." See, Lagassey v. State, 268 Conn. 723, 748, 914 A.2d 509 (2004). "Actionable harm" occurs when the plaintiff discovers the "essential elements" of a possible cause of action, including an injury and causation, that is, "the nature and extent of the injury and that the injury was caused by the wrongful conduct of another." Id., 743 (emphasis in original). In an action sounding in medical negligence, the essential elements are 1) a duty owed by the defendant, 2) a corresponding breach thereof, and 3) the resulting harm to the plaintiff. Id. 751.
In Lagassey, supra, the plaintiff's decedent, who had a known aortic aneurysm which was scheduled for repair, began to experience acute abdominal pain, low back pain, and gastric distress. He was admitted to the John Dempsey Hospital where he was given pain medication and scheduled for additional tests. He thereupon had an acute episode of pain, he experienced a seizure and cardiac arrest, and he died. The plaintiff's decedent suspected for a time that the decedent might have been the victim of medical malpractice, but he was assured by two physicians who had been otherwise associated with the family that the decedent's care at John Dempsey Hospital appeared to have been appropriate. Only after the running of the applicable limitation period did the plaintiff receive a medical opinion that attributed the decedent's death to a failure of the hospital to provide immediate attention to the decedent to rule out a rupture of the aneurysm, which indeed was the cause of death.
Under these facts, the Supreme Court determined that whether the plaintiff could have discovered the injury earlier, that is, within the statute of limitations, was a question of fact, and that it was inappropriate for the court to decide the question in the defendant's favor, as a matter of law.
But the facts here can be distinguished from those in CT Page 17183 Lagassey. In Lagassey, the decedent's son suspected that his father's admission to the hospital may have been mishandled, but he had no concrete information to confirm that fact — indeed, he had been told the contrary — until he "fortuitously met" a cardiovascular surgeon who was able to provide an opinion that the decedent's death was likely the result of a breach of the standard of care. Id. 728.
In the instant case, the plaintiff was told nearly immediately that her bowel injury in the first surgery was the result of a medical mistake. While she did not hire an attorney or retain the services of a forensic expert until some months thereafter, she had knowledge at least by November 2003 that something had gone wrong during the October 23 surgery — that the first team of surgeons had "messed up." That knowledge is sufficient as a matter of law to put the plaintiff on notice that she had suffered actionable harm.
The plaintiff makes much of the fact that she was still undergoing inpatient treatment for the initial injury, including the provision of pain medication, off and on until February 2004. It was not until February 11, 2004, that she actually retained counsel, and not until 2005 that plaintiff's counsel retained the surgical expert whose opinion formed the basis of the good faith certificate in this case. In Legassey the court recognized that sometimes it is only by obtaining such an expert opinion that a plaintiff acquires knowledge "that the physicians may have been negligent in their treatment of the [plaintiff]." Id., 751 (emphasis supplied).
See Conn. Gen. Stat. § 52-190a.
It is not a matter of dispute that this plaintiff knew within days of her initial injury that her physicians may have been negligent. The marshaling of the evidence necessary to commence this medical malpractice action took some additional period of time to develop. But the plaintiff had knowledge of facts sufficient to "put a reasonable person on notice" of the essential elements of her claim by November 2003.
See Catz v. Rubenstein, 201 Conn. 39, 47, 513 A.2d 98 (1986), cited in Lagassey v State, supra, 743.
CONCLUSION
There is no material disputed issue of fact concerning the time frame within which the plaintiff first had knowledge of facts that served to put her on notice that her surgeons may have injured her due to their negligence. She failed to commence this action against one of the two surgeons within two years of gaining that knowledge. That being so, the defendant is entitled to judgment as a matter of law. The defendant's Motion for Summary Judgment is granted.
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