Opinion
No. CV-05-4003595
August 30, 2006
MEMORANDUM OF DECISION
FACTS
On August 29, 2005, the plaintiff, Robert J. Kelly, filed a two-count amended complaint against the defendant, the state of Connecticut University of Connecticut Health Center (UConn). UConn is a health care facility operated by the state of Connecticut and was the employer of Peter C. Albertsen, a physician licensed to practice medicine in Connecticut. Count one sounds in medical negligence and count two sounds in battery and lack of informed consent. The amended complaint was filed following the state of Connecticut claims commissioner's finding and order permitting the plaintiff to sue pursuant to General Statutes § 4-160.
The defendant was originally listed as the University of Connecticut Health Center. On August 29, 2005, the plaintiff filed a motion to substitute the defendant "to add the reference of the State of Connecticut as the currently named defendant in that, pursuant to [General Statutes] § 10a-109c, the University of Connecticut Health Center is a sub-entity operated by and within the legal entity known as the State of Connecticut." This motion was granted on October 20, 2005.
Albertsen is the defendant in a related action that the plaintiff filed against him, Kelly v. Albertsen, Superior Court, judicial district of Hartford, Docket No. CV 02 0816445. Currently, a motion to consolidate the actions against Albertsen and UConn is pending before the court. Also pending before the court is a motion to transfer the action against UConn from the judicial district of Middlesex to the judicial district of Hartford.
General Statutes § 4-160 provides in relevant part: "(a) When the Claims Commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable."
The plaintiff alleges the following facts in his amended complaint. On September 9, 1995, the plaintiff went to see Albertsen complaining of kidney stone disease and chronic kidney function problems along with pain and discomfort. The plaintiff was under the treatment of Albertsen from that time though May 23, 2000. During the plaintiff's visit on September 9, 1995, Albertsen recommended that the plaintiff undergo surgery for the treatment of his condition. On October 24, 1995, under Albertsen's direction, the plaintiff "underwent certain surgical procedures at UConn, including a Left Cystoscpy, Uretescopy, Candela Laser Lithotripsy, and placement of a Left Ureter Stent." Thereafter, the plaintiff was informed that the surgical procedure and the use of the Candela laser equipment had been successful. Following the surgery, the plaintiff began to notice blood in his urine, which he reported to Albertsen. On January 19, 1996, one such occasion that the plaintiff reported his symptoms to Albertsen, he evaluated the plaintiff, but failed to diagnose the cause of the bloody urine. Albertsen, however, did tell the plaintiff to return for a follow-up evaluation. On February 5, 1996, Albertsen performed a cystoscopy on the plaintiff at UConn and informed him that there was no evidence that bladder cancer was causing the blood in his urine. Albertsen did advise the plaintiff that a urine test conducted at UConn showed abnormal cells in the plaintiff's urine, which could indicate a possible cancer and ordered the plaintiff to take a second urine test to verify the accuracy of the first test's result. A second urinalysis was performed to determine whether he still had abnormal cells in his urine, but the plaintiff was never given the results of the second test.
Between 1996 and April 2000, the plaintiff continued to experience episodes of blood in his urine and he reported these episodes to Albertsen. No diagnosis of the cause was made. On April 27, 2000, the plaintiff was evaluated at the UConn emergency room by Albertsen and another physician for "a recurring, acute episode of bloody urine and severe back pain." Neither Albertsen nor the UConn emergency room staff provided the plaintiff with a definitive diagnosis, and the plaintiff was discharged.
Between May 5, and May 8, 2000, the plaintiff underwent an additional diagnostic evaluation for his continuing problem, of blood in his urine and a back pain. On May 23, 2000, following another cystoscopy of the plaintiff, Albertsen informed him that there may be some type of "foreign body" in his left ureter and recommended additional surgery "to diagnose and treat the condition." Albertsen identified the foreign body as a plastic sheath. In June 2000, the plaintiff consulted with two other physicians and on July 20, 2000, the plaintiff underwent surgery at Hartford Hospital to remove the "foreign body," which turned out to be Candela laser fibers. Since that time, the plaintiff has undergone four additional surgical procedures to treat his condition, the most recent one occurring on December 14, 2000.
In count one of the amended complaint, the plaintiff alleges that the negligence and carelessness of Albertsen and UConn's "servants, agents, and/or employees" caused the plaintiff to sustain injuries and damages. In count two, the plaintiff claims that neither Albertsen nor UConn told the plaintiff about any risks of Candela laser fibers breaking during the course of the Candela laser lithotripsy; that neither informed the plaintiff that any Candela laser fibers left behind could cause injuries, some of which are possibly permanent, and that had he been informed about these risks, he might not have opted to undergo this procedure.
UConn and Albertsen's negligent and careless acts include: their failure to properly perform the Candela laser lithotripsy procedure on the plaintiff on October 24, 1995; their leaving behind Candela laser fibers and/or other foreign substances in the plaintiff's left ureter; their failure to timely perform the appropriate tests and "diagnostic evaluations" to determine the cause of the plaintiff's complaints and symptoms; their failure to timely and properly interpret the plaintiff's physical complaints on or after October 24, 1995; their failure to timely consider that either Candela laser fibers or other foreign bodies present in the plaintiff's left ureter could be the cause of the plaintiff's complaints and symptoms; their failure to timely advise the plaintiff to undergo evaluation to determine if foreign materials were present in his left ureter; and their failure to timely advise the plaintiff that the presence of Candela laser fibers in his left ureter was likely causing his condition.
On January 3, 2002, the plaintiff filed a notice of claim with the claims commissioner, seeking permission to sue UConn, the School of Medicine of the University Connecticut Health Center and Albertsen. UConn filed a motion to dismiss on February 4, 2002, on the ground that the claims commissioner lacked subject matter jurisdiction because the claim was not timely filed. While the plaintiff's claim was still pending before the claims commissioner, the plaintiff filed a complaint in the Superior Court against Albertsen for negligence and battery/lack of informed consent. In 2003, Albertsen moved to dismiss the action against him on the ground of sovereign immunity pursuant to General Statutes § 4-165, but that motion has still not been heard. The claims commissioner granted UConn's motion on May 3, 2002, finding that the claim was untimely under General Statutes § 4-148(a).
See footnote 2.
General Statutes § 4-148 provides: "(a) Except as provided in subsection (b) of this section, no claim shall be presented under this chapter but within one year after it accrues. Claims for injury to person or damage to property shall be deemed to accrue on the date when the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered, provided no claim shall be presented more than three years from the date of the act or event complained of.
"(b) The General Assembly may, by special act, authorize a person to present a claim to the Claims Commissioner after the time limitations set forth in subsection (a) of this section have expired if it deems such authorization to be just and equitable and makes an express finding that such authorization is supported by compelling equitable circumstances and would serve a public purpose. Such finding shall not be subject to review by the Superior Court."
The plaintiff then sought permission from the Connecticut General Assembly to resubmit his notice of claim. The legislature enacted Special Acts 2005, No. 05-4, § 1 on June 2, 2005, allowing the plaintiff to sue the state. On July 13, 2005, the claims commissioner issued a finding and order allowing the plaintiff to sue the state of Connecticut. The plaintiff then filed his original complaint against the defendant on August 9, 2005, and his amended complaint on August 29, 2005.
Special Acts 2005, No. 05-4, § 1 provides: "(a) Notwithstanding the failure to file a proper notice of a claim against the statute with the clerk of the Office of the Claims Commissioner, as required by section 4-147 of the general statutes, within the time limitations specified by subsection (a) of section 4-148 of the general statutes, and notwithstanding the provisions of subsection (c) of section 4-148 of the general statutes barring the presentment of a claim once considered by the Claims Commissioner, the General Assembly or in a judicial proceeding, Robert J. Kelly is authorized pursuant to the provisions of subsection (b) of section 4-148 of the general statutes to present his claim against the state to the Claims Commissioner. The General Assembly deems such authorization to be just and equitable and finds that such authorization is supported by compelling equitable circumstances and would serve a public purpose.
"(b) The state shall be barred from setting up the failure to comply with the provisions of sections 4-147 and 4-148 of the general statutes, from denying that notice of the claim was properly and timely given pursuant to sections 4-147 and 4-148 of the general statutes and from setting up the fact that the claim had once been considered by the Claims Commissioner, by the General Assembly or in a judicial proceeding as defenses to such claim."
On October 6, 2005, the defendant filed a motion to dismiss the action on the grounds of lack of subject matter jurisdiction and the prior pending action doctrine. The defendant submitted a memorandum of law in support thereof and included a number of exhibits. The plaintiff filed a memorandum in opposition to the motion on November 23, 2005, and a supplemental memorandum accompanied by, inter alia, the plaintiff's affidavit dated April 6, 2006.
The exhibits included: a copy of the notice of claim filed on January 3, 2002; a certified copy of an excerpt of a transcript of the plaintiff's deposition; a copy of the claim commissioner's memorandum of decision granting UConn's motion to dismiss the plaintiff's claim; a copy of Special Act 05-4; a finding and order of the claims commissioner granting the plaintiff permission to sue the state; an uncertified copy of a transcript of the plaintiff's testimony before the judiciary committee of the state Senate regarding Special Act 05-4; an uncertified copy of a transcript of the `representatives' discussion regarding Special Act 05-4 and a copy of the revised complaint that the plaintiff filed against Albertsen.
DISCUSSION
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction. Practice Book § 10-31(a) provides in relevant part: `[A] motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . .'" St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . ." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) 184 Windsor Avenue, LLC v. State, 274 Conn. 302, 304-05 n. 3, 875 A.2d 498 (2005). "[O]nce the question of lack of jurisdiction of a court is raised, [however, it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Cadle Co. v. D'Addario, 268 Conn. 441, 444, 844 A.2d 836 (2004). "When the constitutionality of a statute implicates the jurisdiction of the court . . . a motion to dismiss may properly serve as a vehicle for presenting such an issue." (Internal quotation marks omitted.) Betton v. Commissioner of Transportation, Superior Court, judicial district of Litchfield, Docket No. CV 03 0090924 (April 27, 2005, Brunetti, J.) ( 39 Conn. L. Rptr. 219.) "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . ." (Internal quotation marks omitted.) Cox v. Aiken, supra, 211.
The defendant moves to dismiss the complaint for lack of subject matter jurisdiction on the ground that Special Act 05-4 is unconstitutional because it is an exclusive public emolument prohibited by article first, § 1 of the state constitution, it was passed to remedy a late notice of claim, for which the state was not responsible and, thus, to grant personal gain or advantage to the plaintiff, and it does not serve a legitimate public purpose. In support of its position, the defendant argues first that the plaintiff's action is untimely because he knew no later than July 20, 2000, the precise nature of his injury, which was more than a year prior to his filing a claim with the claims commissioner. The defendant contends that the plaintiff cannot rely on the "continuing course of treatment" or the "continuing course of conduct" doctrine because the plaintiff, as he testified at his deposition, stopped seeing Albertsen in February 1996, and was not treated by Albertsen from February 1996, through May 2000, and when Albertsen did treat him in May 2000, he informed the plaintiff that there was something, a plastic sheath, which had been retained in his left ureter since the 1995 surgery. Thus, the defendant maintains that because these facts show that there was no later wrongful conduct by Albertsen relating to the October 1995 surgery and no special relationship existed between them from 1996 through mid 2000, the plaintiff cannot rely on these doctrines.
Second, the defendant argues that the Connecticut constitution prohibits public emoluments and that both the Supreme and Superior Courts have found special acts passed by the legislature to be unconstitutional as "exclusive public emoluments." According to the defendant, the Supreme Court has held consistently that legislation that is sought to fix a procedural default for which the state bears no responsibility fails to serve a public purpose, and thus, violates the state constitution. The defendant maintains that Albertsen neither misinformed nor misled the plaintiff into thinking that he had no redress; the plaintiff simply did not seek out the care of any health care provider for more than four years for his urological problems, and that the plaintiff's inactivity is what caused the statute of limitations to run.
In opposition, the plaintiff argues that this court does have subject matter jurisdiction over his action because the legislature authorized his suit by passing Special Act 05-4, which because it fulfills "a legitimate public purpose," is constitutional. The plaintiff contends that in order for a special act to be declared unconstitutional, its sole purpose must be to allow an individual to receive personal gain or an advantage. According to the plaintiff, if a special act fulfills a legitimate public purpose, it will withstand constitutional scrutiny. The plaintiff maintains that because one must strongly presume that these special acts are constitutional, a party who challenges them as unconstitutional bears the burden of proving that the special act is not constitutional beyond a reasonable doubt. Furthermore, it is primarily up to the legislature to determine what is a public purpose, and the court should not reverse the legislature's determination unless it is manifestly and palpably incorrect. Lastly, the plaintiff maintains that Special Act 05-4 remedies an injustice committed against the plaintiff for which the defendant bears responsibility, and that the only question that this court has to answer is whether the legislature had a reasonable ground for determining that the special act served a public purpose. "`Article first, § 1, of the Connecticut constitution provides that "no man or set of men are entitled to exclusive public emoluments or privileges from the community." A state statute is invalid under this clause only if it "directs the granting of an emolument or privilege to an individual or class without any purpose, expressed or apparent, to serve the public welfare thereby . . ." Warner v. Gabb, 139 Conn. 310, 313, 93 A.2d 487 (1952) . . .' (Citations omitted.) Shelton v. Commissioner, 193 Conn. 506, 519, 479 A.2d 208 (1984). `[I]f enacted [to further a public purpose] legislation can be sustained even though it may incidentally confer a direct benefit upon an individual or a class.' State ex rel. Higgins v. Civil Service Commission, 139 Conn. 102, 106, 90 A.2d 862 (1952).
"Our Supreme Court has `taken a broad view of the legislative goals that may constitute a public purpose . . . [A]n act serves a public purpose under article first, § 1, when it promote[s] the welfare of the state; Tough v. Ives, [ 162 Conn. 274, 292, 294 A.2d 67 (1972)]; or when the principal reason for the appropriation is to benefit the public. Roan v. Connecticut Industrial Building Commission, 150 Conn. 333, 339, 189 A.2d 399.' (Internal quotation marks omitted.) Beccia v. Waterbury, 192 Conn. 127, 134, 470 A.2d 1202 (1984)." Commissioner of Public Works v. Middletown, 53 Conn.App. 438, 450, 731 A.2d 749, cert. denied, 250 Conn. 923, 738 A.2d 654 (1999).
"To prevail under article first, § 1, of our constitution, the state must demonstrate that the sole objective of the General Assembly is to grant personal gain or advantage to an individual. State ex. rel. Higgins v. Civil Service Commission, [ supra, 139 Conn. 106]. If, however, an enactment serves a legitimate public purpose, then it will withstand a challenge under article first, § 1. Serrano v. Aetna Ins. Co., 233 Conn. 437, 458-59, 664 A.2d 279 (1995); Tough v. Ives, [ supra, 162 Conn. 292] . . . [L]egislative enactments carry with them a strong presumption of constitutionality, and that a party challenging the constitutionality of a validly enacted statute bears the heavy burden of proving the statute unconstitutional beyond a reasonable doubt. Beccia v. Waterbury, [ supra, 192 Conn. 133]; see also Faraci v. Connecticut Light Power Co., 211 Conn. 166, 168, 558 A.2d 234 (1989)." (Emphasis in original; internal quotation marks omitted.) Chotkowski v. State, 240 Conn. 246, 257-58, 690 A.2d 368 (1997) ( Chotkowski III). "Because an enactment must serve a valid public purpose in order to avoid the prohibition against the granting of `exclusive public emoluments and privileges' contained in article first, § 1, of the state constitution, the determination of whether an enactment serves such a purpose is necessarily one of constitutional magnitude. It is the court's duty to ensure that legislative action falls within constitutional boundaries; Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78, 2 L.Ed. 60 (1803); Szarwak v. Warden, 167 Conn. 10, 27, 355 A.2d 49 (1974); even if that action involves a waiver of the immunity from suit enjoyed by the state under the common law. Consequently, the legislature cannot "by mere fiat or finding, make `public' a truly `private' purpose . . . Its findings and statements about what is or is not `public' cannot be binding upon the court. Lyman v. Adorno, [ 133 Conn. 511, 517, 52 A.2d 702 (1947)]." Wilson v. Connecticut Product Development Corp., 167 Conn. 111, 116 n. 2, 355 A.2d 72 (1974)." Chotkowski III, supra, 258-59.
"[W]hat constitutes a public purpose is primarily a question for the legislature, and its determination should not be reversed by the court unless it is manifestly and palpably incorrect. Barnes v. New Haven, 140 Conn. 8, 15, 98 A.2d 523 (1953); see also Wilson v. Connecticut Product Development Corp., supra, 167 Conn. 115-16; Roan v. Connecticut Industrial Building Commission, [ supra, 150 Conn. 345]. [W]e are not to assess [the constitutionality of an act] in the light of what we think of the wisdom and discernment of the law-making body in the particular instance. Rather we are bound to approach the question from the standpoint of upholding the legislation as a valid enactment unless there is no reasonable ground upon which it can be sustained. Roan v. Connecticut Industrial Building Commission, supra, 338; see also Warner v. Gabb, [ supra, 139 Conn. 313]. Thus, if there be the least possibility that making the gift will be promotive in any degree of the public welfare, it becomes a question of policy and not of natural justice; and the determination of the legislature is conclusive. Lyman v. Adorno, supra, 133 Conn. 524. In other words, if we can discern any conceivable justification for [the] challenged legislation from the public viewpoint; Merly v. State, 211 Conn. 199, 205, 558 A.2d 977 (1989); we are bound to uphold it against a constitutional challenge predicated on article first, § 1.
"Although [w]e have taken a broad view of the legislative goals that may constitute a public purpose; Beccia v. Waterbury, supra, 192 Conn. 134; [b]ecause the elements of a public purpose vary as much as the circumstance in which the term is appropriate, each case must be determined on its own peculiar facts." Tough v. Ives, supra, 162 Conn. 292. In general, however, we have found that an act serves a public purpose under article first, § 1, when it promote[s] the welfare of the state . . . or when the principal reason for the appropriation is to benefit the public . . . (Citations omitted; internal quotation marks omitted.) Beccia v. Waterbury, supra, 134; Wilson v. Connecticut Product Development Corp., supra, 167 Conn. 117. Furthermore, an enactment will be deemed to serve a valid public purpose, even though it confers a direct benefit upon a particular individual, if it remedies an injustice done to that individual for which the state itself bears responsibility. Stager v. Bridgeport, 124 Conn. 183, 189, 198 A. 746 (1938); see also Chotkowski v. State, 213 Conn. 13, 18, 566 A.2d 419 (1989) ( Chotkowski II); Merly v. State, supra, 211 Conn. 213-14; Vecchio v. Sewer Authority, 176 Conn. 497, 506-07; 408 A.2d 254 (1979); Hillier v. East Hartford, 167 Conn. 100, 108-09, 355 A.2d 1 (1974). In such circumstances, the benefit conferred upon a private party by the legislature may be viewed as incidental to the overarching public interest that is served in remedying an injustice caused by the state." Chotkowski III, supra, 240 Conn. 259-60.
"By contrast, we have consistently held that legislation seeking to remedy a procedural default for which the state is not responsible does not serve a public purpose and, accordingly, runs afoul of article first, § 1, of the state constitution. See, e.g., Merly v. State, supra, 211 Conn. 214 . . . Thus, legislation cannot survive a constitutional challenge under article first, § 1, if it excuses a party's failure to comply with a statutory notice requirement simply because the noncompliance precludes consideration of the merits of the party's claim. (Citations omitted.) Chotkowski III, supra, 240 Conn. 260 n. 18. Similarly, where a special act has allowed a person named therein to bring a suit based upon a statutory cause of action that would otherwise be barred for failure to comply with a time limit specified in the statute, we have ordinarily been unable to discern any public purpose sufficient to sustain the enactment. Merly v. State, supra, 213." (Internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 734, 846 A.2d 831 (2004).
The Supreme Court "has consistently invalidated special acts that do not serve a legitimate public purpose and run afoul of article first, § 1. Merly v. State, [ supra, 211 Conn. 215], CT Page 15887 Hillier v. East Hartford, [ supra, 167 Conn. 110]; Tough v. Ives, [ supra, 162 Conn. 294]; Vecchio v. Sewer Authority, [ supra, 176 Conn. 507]. Conversely, the Supreme Court has allowed a special act to survive a constitutional challenge, but only in cases where a state actor/agency had been involved in disrupting the course of the action, Chotkowski III, supra, 240 Conn. 263; Stager v. Bridgeport, supra, 124 Conn. 183." Betton v. Commissioner of Transportation, supra, 39 Conn. L. Rptr. 219.
"Notwithstanding a claimant's failure to comply with the limitation period set forth in subsection (a), § 4-148(b) . . . allows the General Assembly to pass a special act authorizing an untimely claim if it finds `compelling equitable circumstances' and `public purpose.' Although § 4-148(b) provides that `[s]uch finding shall not be subject to review by the Superior Court,' special acts passed in this manner are subject to review nonetheless under the public emoluments clause contained in article first, § 1, of the state constitution." Lagassey v. State, supra, 268 Conn. 733.
The court in Lagassey set out the analysis to be performed in determining whether a special act is constitutional. "The plaintiff will prevail if she can demonstrate that the initial determination of the commissioner concerning noncompliance with § 4-148(a) was mistaken . . . [because if that is the case], it could not be said that the plaintiff had been given any special privilege . . . and thus [the special act] would not run afoul of article first, § 1, of the state constitution. In order for the defendant to prevail, however, not only must we agree with the commissioner and the trial court that the plaintiff's claim was untimely as a matter of law, but we must also be unable to discern any conceivable justification for [the] challenged legislation from the public viewpoint . . . Chotkowski III supra, 240 Conn. 259. Put another way, in order for the plaintiff to prevail, it is sufficient to show that her claim was not untimely as a matter of law; in order for the defendant to prevail, we must determine that [the special act] furthers no public purpose, which, pursuant to Merly, necessarily is predicated upon a determination that the plaintiff's claim was untimely as a matter of law." (Citation omitted; internal quotation marks omitted.) Lagassey v. State, supra, 268 Conn. 735-36.
In Lagassey, the plaintiff, on appeal, had argued that the claims commissioner had improperly found that her claim was untimely. While the plaintiff in the present case does not argue that the claims commissioner erred in finding that his claim was untimely, the defendant maintains that the claim brought before the claims commissioner was untimely and that the state bears no responsibility for this untimeliness. Because the principal issue presented in this case is whether the special act on which the plaintiff relies should be declared invalid as an exclusive emolument or privilege, however, we must explore whether there is any conceivable justification for this challenged legislation from the public viewpoint. Hillier v. East Hartford, [ supra, 167 Conn. 107-09]; Tough v. Ives, [ supra, 162 Conn. 294]; Sanger v. Bridgeport, [ supra, 124 Conn. 189]." (Internal quotation marks omitted.) Lagassey v. State, supra, 268 Conn. 735. Therefore, the court must first determine whether the plaintiff's claim was not untimely as a matter of law.
To determine the issue of timeliness as it pertains to § 4-148(a), the Connecticut Supreme Court has looked to General Statutes § 52-584, "which contains the limitation period for actions seeking damages for personal injury generally [and] informs our interpretation of § 4-148(a). Section 52-584 provides in relevant part: `No action to recover damages for injury to the person . . . caused by negligence . . . or by malpractice of a physician, surgeon . . . [or] hospital . . . 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 . . .' A plain reading of §§ 4-148(a) and 52-584 reveals that the statutes are alike in most material respects. Both statutes provide that the limitation period begins to run when a plaintiff discovers the injury or, in the exercise of reasonable care, should have discovered the injury, and both statutes contain a three year period of repose. The only material differences in the two statutes are that § 4-148(a) allows for a one year limitation period while § 52-584 allows for a two year limitation period, and § 4-148(a) relates only to actions against the state . . ." Lagassey v. State, supra, 268 Conn. 738-39.
Albertsen allegedly performed the surgery which caused injury to the plaintiff on October 24, 1995. Therefore, pursuant to the statute of repose, the plaintiff would have had until 1998 to bring his claim against the defendant. Nevertheless, the plaintiff alleges that he continued to report his physical symptoms to Albertsen from 1996 to 2000. Therefore, assuming that the continuous treatment doctrine or the continuous course of conduct doctrine applies to the facts of the present case to toll the statute of repose, this court must determine as a matter of law when the plaintiff discovered the injury.
"Both §§ 4-[148](a) and 52-584 state that the limitation period begins to run on the date when the plaintiff discovers or should have discovered the injury. In this context, we have repeatedly stated that an injury occurs when a party suffers some form of actionable harm." (Internal quotation marks omitted.) Lagassey v. State, supra, 268 Conn. 739. "The harm need not have reached its fullest manifestation before the statute begins to run." (Internal quotation marks omitted.) Id.
"We acknowledge that our cases interpreting either § 4-148(a) or § 52-[584] have been less than consistent, and we take this opportunity to clarify the application of these statutes in this context. In that regard, although our case make clear that the point at which a plaintiff discovered or in the exercise of reasonable care should have discovered an injury is generally a question of law on some occasions. Compare Taylor v. Winsted Memorial Hospital, [ 262 Conn. 797, 810, 817 A.2d 619 (2003)] ('determination of reasonable care is a question of fact') and Catz v. Rubenstein, [ 201 Conn. 39, 49, 513 A.2d 98 (1986)] (when injury should have been discovered is question of fact) with Merly v. State, supra, 211 Conn. 208 (plaintiff failed to exercise reasonable care as a matter of law) and Burns v. Hartford Hospital, 192 Conn. 451, 459-60, 472 A.2d 1257 (1984) (no issue of fact in dispute as to when plaintiff discovered injury)." Lagassey v. State, supra, 268 Conn. 739. In the present case, it appears that no later than sometime in 2000, the plaintiff learned about the presence of Candela laser fibers in his left ureter. While the complaint does not make clear when exactly the plaintiff discovered the presence of Candela laser fibers, this discovery occurred no later than in 2000 as the complaint alleges that on July 20, 2000, the plaintiff underwent surgery performed by the doctors at Hartford Hospital to remove the fibers from his left ureter and the most recent surgery that the plaintiff underwent occurred on December 14, 2000.
Although in his notice of claim filed on January 3, 2002, the plaintiff alleges he received an expert medical opinion on September 24, 2001, pertaining to the alleged malpractice committed against him, the plaintiff discovered actionable harm committed against him in 2000 when he discovered the presence of Candela laser fibers. Furthermore, the plaintiff's allegation of battery and lack of informed consent is also untimely. In Lambert v. Stovell, 205 Conn. 1, 2-4, 529 A.2d 710 (1987), a medical malpractice case stemming from an ankle fusion surgery, the plaintiff argued that the two-year statute of limitations contained in General Statutes § 52-577 governed his action as it was an intentional tort action based on assault and battery. The Supreme Court, however, found that the theory of battery did not apply to the case as the plaintiff had consented to the medical procedure that was performed on him and because he neither alleged nor showed that he failed to understand what the surgery entailed. Therefore, in the present case, the plaintiff cannot rely on the longer statute of limitations afforded to actions sounding in battery. The Supreme Court in Lambert further found for statute of limitations purposes, the plaintiff discovered the actionable harm in August 1977, when he learned about the infection and the nonunion of the joint. Allegedly, these risks were material risks that were not disclosed to the plaintiff, and the plaintiff testified that had these risks been disclosed, these risks would have caused him to decline to undergo the procedure. Therefore, in the present case, the plaintiff allegedly discovered the actionable harm in 2000 when he learned that Candela laser fibers from his 1995 surgery were left in his left ureter, as the plaintiff then discovered material risks related to the 1995 surgery. Allegedly, had the plaintiff known about the risk of the Candela laser fibers breaking, he might have opted not to have the surgery.
In recent cases involving special acts enacted to permit plaintiffs to bring medical malpractice actions notwithstanding the untimeliness of the actions, the courts have found the claims commissioner erred in finding the malpractice claims to be untimely and therefore, did not have to reach this issue of whether the special acts were constitutional as serving a public purpose. See Lagassey v. State, supra, 268 Conn. 724-25; Philbrick v. State, Superior Court, judicial district of Hartford, Docket No. CV 03 0829941 (January 18, 2005, Shapiro, J.). Whereas historically, the Supreme Court has found a negligence action to be untimely and the special act allowing the plaintiff to bring the untimely action to be unconstitutional. See Merly v. State, supra, 211 Conn. 200-08, 212-15.
As stated earlier in this memorandum, in the past, the Supreme Court has invalidated special acts as not furthering a public purpose, where the state actor did not procedurally prevent the plaintiff from bringing a timely action against the defendant, the government entity or actor. See Merly v. State, supra, 211 Conn 214. The plaintiff has not alleged nor has he presented any evidence in the present case to indicate that a procedural mistake by a state actor prevented him from filing his claim. Any delay was one by Albertsen in not finding the cause of the plaintiff's physical symptoms, which is not the kind of procedural error committed by a state actor that would impede the plaintiff in bringing a claim against the state. Once the plaintiff discovered sometime in 2000 that the Candela laser fibers were the cause of his physical symptoms, the defendant did not stop the plaintiff from pursuing his claim then. While the plaintiff argues that Special Act 05-4 serves a public function, the Superior Court has stated in Maysonet v. Hartford Housing Authority, Superior Court, judicial district of Hartford, Docket No. CV 95 0545863 (December 4, 1996, Lavine, J.) ( 18 Conn. L. Rptr. 346, 348): "Plaintiff's counsel argues, in essence, that the public purpose of the act is to see that justice is done in this particular case. But such a public purpose would exist in every case in which a defective notice had been given and would render the public purpose requirement of Merly and other cases a meaningless nullity." (Internal quotation marks omitted.) The plaintiff's claim was untimely as a matter of law and further serves no public purpose.
Since the motion to dismiss should be granted on the ground that Special Act 05-4 is unconstitutional, this court need not examine whether the prior pending action doctrine acts as a bar to this suit.
CONCLUSION
The motion to dismiss is granted.