Opinion
No. CV 03-0830848
April 10, 2007
MEMORANDUM OF DECISION ON THE MOTION FOR SUMMARY JUDGMENT DATED MAY 4, 2006 SUBMITTED BY THE DEFENDANT, ELLIOT S. BERMAN, DDS
This is a dental malpractice case in which the plaintiff, Nelson Jimmo (hereinafter also "Jimmo") has claimed that he was a patient of the defendant, Doctor Elliot S. Berman, (hereinafter also "Berman") and that the plaintiff received treatment "for the purpose of restorative and cosmetic dentistry consisting of the application of veneers to his natural teeth, the installation of caps and crowns, and an installation of a bridge device in order to correct problems with his natural teeth and to enhance the cosmetic appearance of his mouth." Plaintiff has claimed that the veneers applied to his teeth have become loose, the veneers and caps applied to the plaintiff's mouth were of an improper color, that some of the caps and crowns applied to the plaintiff's teeth are of an improper length and portions of the bridge device installed in the plaintiff's mouth have broken and will require replacement. All of the treatment mentioned in plaintiff's Amended Revised Complaint occurred between October 1998 and January 2, 2001. It was on January 29, 2001 that Jimmo, dissatisfied with the treatment given to him by Berman, terminated his relationship with Berman.
On May 4, 2006, Berman filed the instant motion for summary judgment claiming that the statute of limitations, Conn. Gen. Stat. § 52-584 had been violated. In his motion for summary judgment, Berman states in pertinent part: "For purposes of the present motion, the Plaintiff's cause of action is divided into three parts: (1) that aspect of plaintiff's claim which relates to dental work on a bridge intended to repair and treat Teeth Nos. 13, 14 and 15; (2) that aspect of his claim which relates to the placement of cosmetic laminate veneers on Teeth Nos. 21, 22, 23, 24, 25, 26 and 27; and (3) that aspect of his claim which relates to the placement of cosmetic laminate veneers and porcelain crowns on Teeth Nos. 6, 7, 8, 9, 10 and 11." Berman claims that a permanent, three-unit bridge was inserted into Jimmo's mouth with regard to Teeth Nos. 13, 14 and 15 on December 7, 1998 and that no further treatment on those teeth was done after December 7, 1998.
Berman further claims that as to Teeth Nos. 21 through 27, the placement of cosmetic laminate veneers was done on February 15, 1999 and February 24, 1999 and replacement of one of the veneers was done on August 16, 1999 and that he provided no further treatment as to these teeth after August 16, 1999.
As for Teeth Nos. 6 through 11, Berman claims that he was first consulted in October of 1998 regarding plaintiff's desire to improve the whiteness of his upper anterior teeth. Berman claims that he placed porcelain laminate veneers on these teeth on October 19, 1998 for the purpose of improving the cosmetic appearance of these teeth. He further claims that almost two years later in September of 2000, he was again consulted by the plaintiff with regard to the cosmetic appearance of his upper anterior teeth. As a result, Berman, instead of using veneers, inserted porcelain crowns on said tupper anterior teeth on December 11, 2000. Berman further claims that on January 2, 2001, the plaintiff returned for follow-up treatment with regard to the porcelain crowns on his tupper anterior teeth.
The gravamen of Berman's motion for summary judgment is that by taking treatment of these three sets of teeth separately, the three-year statute of repose was violated in regard to the insertion of the bridge on December 7, 1998 and to the treatment of Teeth Nos. 21 through 27 between February 15, 1999 and August 16, 1999.
As for Teeth Nos. 6 through 11 Berman concedes that the last treatment for these teeth was on January 2, 2001.
This lawsuit was commenced by complaint dated November 21, 2003 and was served upon the defendants on December 2, 2003. Berman, therefore, claims that the three-year statute of limitations (statute of repose) was violated for the treatment done on December 7, 1998 and the treatment done on February 15, 1999 through August 16, 1999, more than three years having elapsed since the treatment specified before this suit was commenced. Berman also claims that as to the treatment completed on January 2, 2001, the two-year statute of limitations contained in Conn. Gen. Stat. § 52-584 was violated in that it requires a plaintiff to bring an action 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. This is often described as when the patient discovers or should have discovered that actionable harm has been done to him. As to this part of the statute, January 2, 2001 to December 2, 2003 is more than two years. However, the plaintiff claims that he did not realize that he had suffered actionable harm until he obtained an opinion from Doctor Macko on November 1, 2003. As for the treatment concluded on January 2, 2001, Berman has not claimed a violation of the three year statute of repose contained in Conn. Gen. Stat. § 52-584. The plaintiff has countered with the claim that the treatment of December 7, 1998 through January 2, 2001 was a continuing course of treatment and conduct and, therefore, the three-year statute of limitations did not begin to run until January 2, 2001 which would mean that since suit was initiated on December 2, 2003, the statute of repose was not violated. Moreover, Jimmo claims he did not learn that he had suffered actionable harm until receiving Dr. Macko's opinion on November 1, 2003 thereby satisfying the two-year statute of limitations. Berman, however, claims as mentioned above that the treatment was divided into three separate and discrete sets of treatment. Several memoranda of law were filed by Berman and Jimmo, and this Court heard oral argument on March 5, 2007.
Upon learning of the "actionable harm" on November 1, 2003, Jimmo immediately filed this suit by complaint dated November 21, 2003, a period of less than three weeks. The court reasonably infers that it was this knowledge that triggered the lawsuit. This sequence of events makes the plaintiff's claim that he didn't learn of the "actionable harm" until November 1, 2003 credible.
Prior to the filing of the motion for summary judgment, Berman had initiated a collection action against Jimmo for his fees for performing the services rendered. On February 17, 2004, the same parties entered into a settlement agreement to resolve the collection action. Jimmo had submitted in that action an affidavit to support his previous motion to reopen the collection action which affidavit, according to Berman, is inconsistent with the affidavit he subsequently filed in support of his opposition to Berman's motion for summary judgment. The settlement agreement purports to prohibit the introduction into the case at bar of any of the terms of the settlement agreement. Berman's attorney requested an opportunity to file a memorandum of law on this issue and present oral argument as well. Jimmo filed a memorandum in opposition to Berman's memorandum, and oral argument was heard on this issue before this Court on April 2, 2007.
STANDARD OF REVIEW
"A trial court may appropriately render summary judgment when the documents submitted 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." Burns v. Hartford Hospital, 192 Conn. 451, 455, 472, A.2d 257 (1984); Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983).
A party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact. Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971). To satisfy this burden, the movant must make a showing that it is quite clear what the truth is and that there is no doubt as to the existence of a genuine issue of material fact. Plouffe v. New York, N.H. H.R. Co., 160 Conn. 482, 488, 280 A.2d 359 (1971). The test that has been stated is: "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marked omitted.) Cummings Lockwood v. Gray, 26 Conn.App. 293, 296-97, 600 A.2d 1040 (1991).
ISSUES AND FINDINGS 1. Does the settlement agreement prohibit the Court's consideration of the Jimmo affidavit submitted in connection with the collection action?The short answer is yes.
Berman claims that judicial estoppel based upon public policy would preclude prohibition of the consideration of the collection action affidavit and further claims that the use of the word "herein" in the settlement agreement refers only to the agreement and not to the affidavit, and at the very least the language is ambiguous and, therefore, should be held against the drafter of the agreement, namely Jimmo's attorney. The Court is not persuaded.
See footnote no. 1 as to a reason the Court believes that Jimmo didn't become aware of "actionable harm" until November 1, 2003.
This agreement was an overall settlement of all issues and documents pertaining to the collection action. This would include a prohibition of the introduction of the affidavit. The Court does not find the wording of the agreement to be ambiguous. It carries out the intent of the parties.
This was a settlement agreement voluntarily entered into by both parties who were aided by legal counsel. There was a quid pro quo. Berman cannot now deny something to which he agreed during the settlement of the collection action. Accordingly, Berman cannot be relieved of the settlement agreement. Therefore, the Court will not consider the affidavit which was submitted in the collection action. Based upon the affidavit submitted by Jimmo, the Court concludes that he did not become aware of actionable harm until his visit with Dr. Macko on November 1, 2003. The two-year discovery portion of Conn. Gen. Stat. § 52-584 was not violated.
2. Does the continuing course of conduct claim defeat the motion for summary judgment?
The short answer is yes.
a. After reviewing all of the memoranda and hearing all of the oral arguments and reviewing the case law on the issue of whether or not a continuing course of conduct is an issue of fact, the Court concludes that there is clearly a genuine issue of material fact. There are two conflicting versions of the treatment. Berman, "for the purposes of this motion" claims that the three sets of treatment are separate and discrete whereas Jimmo, in his affidavit, states that he went to Berman to have cosmetic restoration of his teeth and never thought of it as separate treatments. By Berman's own memorandum in support of his motion for summary judgment, he states: "Almost two years later in September of 2000, Doctor Berman was again consulted by the plaintiff with regard to the cosmetic appearance of his upper anterior teeth. Instead of using veneers, Doctor Berman recommended the plaintiff have porcelain crowns inserted on Teeth Nos. 6, 7, 8, 9, 10 and 11. On December 11, 2000, Doctor Berman inserted the porcelain crowns on the upper anterior teeth. On January 2, 2001, the plaintiff returned for follow up treatment with regard to the porcelain crowns on his upper anterior teeth." Moving from veneers to porcelain crowns were clearly in regard to the cosmetic appearance of the plaintiff's teeth. In the same affidavit, Berman claims that the dental bridge was intended to treat and repair Teeth Nos. 13, 14 and 15. Treat and repair can easily be part of the cosmetic appearance of the plaintiff's teeth and mouth, especially if the bridge was cracked or worn. The treatment in February of 1999 and August of 1999 was for insertion of porcelain laminate veneers which is clearly for cosmetic purposes as were the porcelain crowns installed and adjusted on December 11, 2000 and January 2, 2001.
In Blanchette v. Barrett, 229 Conn. 256, 276 (1994), in referring to the continuing course of treatment and the continuing course of conduct doctrine, the Court states: "In application, both doctrines are conspicuously fact-bound."
In any event, as stated above, there are two conflicting versions of the purpose of the treatment requested of and performed by Berman. Who is the Court supposed to believe? This is clearly an issue of fact to be decided by the trier of fact.
b. If, as Berman claims, it is an issue of law as to whether or not it was a continuing course of treatment, and this Court has to decide that issue, the Court takes the allegations in their most favorable light to the plaintiff as required by law. Additionally, because of the treatment described, the affidavits, and memoranda submitted by the parties, the Court concludes that as a matter of law treatment was a continuing course of treatment.
Defendant has cited several eases involving medical malpractice. However, these seem to be factually dissimilar to the case at bar. In one case, there was a determination of whether diagnostic tests were part of a continuing course of treatment or conduct. An x-ray was misread on one date showing no cancer, and another x-ray was properly read much later by another doctor and the subsequent x-ray showed that there was cancer and that that was evident from the first x-ray. The Court found that under the circumstance there was not a continuing course of treatment or conduct, that the first x-ray was the tort and the second x-ray was separate to the extent that it was a different x-ray and done by a different doctor. Several of the other cases cited by the defendant involve misread x-rays or other acts that were individual and later acts that were not part of a continuing course of treatment. See Zielniski v. Kotsoris, 279 Conn. 312 (2006) also cited by the defendant.
Defendant cites Nieves v. Cirmo, 67 Conn.App. 576, 5782 (2002). The court stated that ". . . we 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." Citing Witt v. St. Vincent's Medical Center, 252 Conn. 363, 370 (2000). The allegations of the complaint read in the light most favorable to the plaintiff clearly alleges that an initial wrong was done upon the plaintiff as far back as the installation of the bridge. Whether the defendant owed a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) continually breached that duty, the defendant claims at least (2) is an issue of law. This Court concludes that the defendant did owe a continuing duty to the plaintiff that was related to the alleged original wrong. If, as alleged, it all involved cosmetic treatment of the plaintiff's teeth, the original work, the replacement of the bridge, was part of the cosmetic treatment and the defendant not only owed a continuing duty to fix what he had done, but owed a continuing duty for further cosmetic treatment right up until January 2, 2001. The defendant continually breached that duty to the plaintiff, namely, a continuing duty to correct wrongs done and to continue proper treatment of the cosmetic appearance of the plaintiff's teeth. Further, as alleged, the defendant continually breached that duty by negligently performing the treatment described.
In some of the cases cited by the defendant, it was claimed that there first has to be a finding of negligence on the part of the defendant and that has to be shown by an expert opinion or expert testimony. Assuming that is true, the use of expert testimony or an expert opinion showing the defendant's negligence is better left to trial and is inappropriate for a motion for summary judgment. Additionally, if that were to be a criteria, whether or not the defendant was negligent, which is really ultimately the issue in this case to be left to the trier of fact, is itself an issue of fact. Neuhaus v. DeCholnoky, 280 Conn. 190, 217 (2006), states, in pertinent part, that "The 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." This Court finds that there existed a duty from the defendant to the plaintiff to perform the dental treatment in a proper manner without negligence.
Finally, Blanchette v. Barrett, supra, 229 Conn. at 256, gives the reason for the continuing course of conduct doctrine: "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 may yet be remedied. Similarly, "[t]he policy underlying the continuous treatment doctrine seeks to maintain a 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." Citing Connell v. Colwell, 214 Conn. 242, 253 (1990). The Blanchette court also cited Cross v. Huttenlocher, 185 Conn. 390 (1981), which states, inter alia: "Our determination that the statute of limitations should be tolled was based upon the continuous treatment of the plaintiff patient by the defendant physician through his prescribing of medication to her in order to treat her condition. In reaching our decision, we also stated that "[b]ecause the negligent failure to warn is a continuing course of conflict, the statute of limitations does not begin to run until the course of conduct is completed."
In the case at bar, this Court concludes that the dental/patient relationship existed from the installation of the bridge continually through January 29, 2001 (all of the treatment terminated January 2, 2001). It was a continuing relationship between the plaintiff and the defendant for cosmetic treatment of his teeth.
For the foregoing reasons, this Court finds a continuing course of conduct/treatment existed as a matter of law from the installation of the bridge through January 2, 2001.
CONCLUSION
From the totality of the evidence, pleadings, etc., there is a material issue of fact, and there is a continuing course of conduct/treatment as a matter of law. Accordingly, the Defendants' Motion for Summary Judgment is denied.