Opinion
No. X10 044010268S CLD
May 7, 2007
Memorandum of Decision
Before the court is a motion for summary judgment in a dental malpractice action, which was commenced by writ, summons and complaint, dated March 23, 2004, with a return date of April 20, 2004. The plaintiff's claims of negligence relate to a series of oral surgeries and care relating thereto as well as claims of failure to obtain informed consent. While there are other named defendants, the defendants at issue here are Ronald H. Delfini, D.D.S. and Ronald H. Delfini, D.D.S., PC (collectively "Delfini" or "Delfini defendants").
Delfini filed a motion for summary judgment as "to the fourth and fifth counts [of the plaintiff's complaint] on the grounds that there is no genuine issue of material fact that the statute of limitation and/or repose contained in [Section] 52-584 expired prior to plaintiff bringing the instant action." The fourth count of the plaintiff's complaint alleges, inter alia, that the Delfini defendants were negligent in providing care to the plaintiff. The fifth count of the plaintiff's complaint alleges Delfini failed to properly obtain the informed consent of the plaintiff prior to administering the surgical procedures complained of in this action.
I FACTS AND PROCEDURAL HISTORY
The operative pleading is the plaintiff's second amended complaint, dated September 30, 2005. The complaint describes a long history of dental problems for the plaintiff, ultimately causing her to wear full dentures. Over time the plaintiff experienced "severe oral bone degradation" that prevented her from being able to support the dentures as implanted. Starting around 1992, as a result of this deficiency, the plaintiff consulted Dr. Delfini, a periodontist, and Stefano Fusi, M.D., a plastic surgeon. On or around December 28, 1993, the plaintiff underwent oral surgery, which was performed by Dr. Fusi and Dr. Delfini. The plaintiff was periodically treated thereafter by both Dr. Fusi and Dr. Delfini, individually or jointly. The plaintiff alleges her injuries were sustained on December 23, 1993, September 25, 1997, September 29, 1997, October 3, 1997, July 17, 1998 and August 7, 1998. The plaintiff then consulted periodically with Delfini regarding her condition until February 25, 2000.
The plaintiff alleges to have consulted with Dr. Fusi in August of 1992 and Dr. Delfini in February of 1993.
The circumstances relevant to the motion before the court began on August 10, 1999, when the plaintiff consulted with Dr. Delfini regarding "pain in the upper right quadrant of her mouth and face." Dr. Delfini described the session in a treatment note, which indicated: "Patient having pain upper right. Implant seems fine. Felt like some HA (hydroxyapatite block) was loose on the tissue. Recommended CT scan" The CT scan recommended by Dr. Delfini during this treatment session was performed approximately two weeks later.
The plaintiff next met with Dr. Delfini on February 25, 2000 because she complained of ongoing complications regarding her condition. The plaintiff contends Dr. Delfini did not advise her of the results of the CT scan during this session. After the session on February 25, 2000, "due to the failure of multiple procedures and a lack of responsiveness to her complaints, [the] plaintiff did not contact Dr. Delfini again." The plaintiff provided Dr. Delfini with no formal notification that she was terminating their physician-patient relationship, but "instead stopped seeing him." The undisputed facts are that the Delfini defendants were neither involved in the treatment of the plaintiff following this date, nor were they in contact with the plaintiff in any manner related thereto, right up to the filing of this action on March 23, 2004.
On May 11, 2006 the Delfini defendants filed the present motion for summary judgment. Oral arguments on the motion were heard on January 19, 2007. During oral arguments plaintiff's counsel requested an extension of time to depose Dr. Delfini in order to discover further evidence in support of her claim that the continuing course of conduct doctrine tolled the statute of repose. The request was granted by this court. This court set forth a March 7, 2007 deadline for the deposition to take place and for the parties to submit supplemental briefs relating to the issue of whether the continuing course of conduct doctrine tolled the statute of repose. On March 6, 2007 the plaintiff filed for an extension of time until April 1, 2007 to file supplemental briefs. The plaintiff represented that the motion was consented to by opposing counsel. After missing the March 7, 2007 deadline imposed by this court, the plaintiff discovered the extension applied for on March 6, 2007 was not consensual among the parties. On March 14, 2007 the plaintiff filed an additional request for an extension of time, until April 1, 2007, to file supplemental filings in opposition to the Delfini motion for summary judgment. This court granted the second extension request and provided the plaintiff until March 30, 2007 to file a supplemental brief, which was submitted on March 23, 2007.
II STANDARD OF REVIEW
"Practice Book § 17-49 provides that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotations omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006).
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). "The party seeking summary judgment has the burden of showing the absence of any genuine issue of material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law, and the party opposing such a motion must provide an evidentiary foundation to demonstrate the genuine issue of material fact." (Citations omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).
A Count Four
The Delfini defendants claim count four of the complaint is barred by the three-year statute of repose provided in General Statute § 52-584. "[T]he relevant date of the act or omission complained of, as that phase is used in § 52-584, is the date when the negligent conduct of the defendant occurs and not the date when the plaintiff first sustains damage." (Citation omitted; internal quotation omitted.) Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994).
The statute provides in relevant part: "No action to recover damages for injury to the person . . . caused . . . by malpractice of a . . . physician [or] dentist . . . shall be brought but within two years from the date when the injury is first sustained or discovered . . . and except that no such action may be brought more than three years from the date of the action or omission complained of . . ." GENERAL STATUTES § 52-584 (2006).
The plaintiff alleges injuries resulting from the alleged negligence were sustained through a series of treatments concluding on August 7, 1998. Since the present action was filed on March 23, 2004, the Delfini defendants claim they are entitled to summary judgment as a result of the action not being filed within the three-year statue of repose accruing from August 7, 1998. Both parties acknowledge "the statute of limitations, in the proper circumstances, may be tolled under the continuous treatment or the continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date." Id. Therefore, disposition of the motion before the court depends upon whether the statute of repose, as prescribed in General Statute § 52-584, was tolled pursuant to either the doctrine of continuous treatment or the doctrine of continuing course of conduct.
i. Continuous Treatment Doctrine
The continuous treatment doctrine recognizes that an action based on malpractice may involve "a single act of a physician or surgeon or . . . a course of treatment." (Citation omitted; internal quotation omitted.) Id. at 274. The doctrine suspends the commencement of the statue of limitations for any malpractice cause of action until the course of treatment related thereto comes to a resolute conclusion. Id. "[T]he 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." (Citation omitted; internal quotation omitted.) Id. at 276. When the physician/patient relationship is terminated the policy justifications supporting the suspension of the statute of limitations dissipates. Following the termination of a physician/patient relationship the statute of limitations will commence as to any cause of action arising from the relationship. The continuous treatment doctrine does not require "a formal discharge of the physician or any formal termination of his or her employment." (Citation omitted; internal quotation omitted.) Id. at 274-75.
The undisputed facts before the court establish that the plaintiff did not receive any treatment from Delfini after her final consultation on February 20, 2000. When "there is no evidence that the plaintiff received any treatment beyond his or her last visit with the defendant . . . the continuing treatment doctrine does not apply." (Emphasis added.) Sherwood v. Danbury Hospital, 252 Conn. 193, 209-10 n. 14, 746 A.2d 730 (2000). This same line of reasoning was applied in Grey v. Stamford Health Systems, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV010182783S (June 6, 2005, Dooley, J.) ( 39 Conn. L. Rptr. 603). In Grey the court granted a motion for summary judgment based on General Statute § 52-584, holding the continuous treatment doctrine did not apply where there was no dispute that the defendant had no contact or involvement in the treatment of the plaintiff after a final consultation.
In the instant case, the continuous treatment doctrine may have tolled the commencement of the statute of repose from August 7, 1998 until February 20, 2000. However, it cannot toll the statute of repose in this matter beyond February 20, 2000, the date of the final consultation between the plaintiff and Delfini. The present action was filed more than four years from the final consultation date, outside the three years allowed by the statute of repose. Therefore, in order for the present action not to be barred by § 52-584, the continuing course of conduct doctrine must apply.
ii. Continuing Course of Conduct Doctrine
The plaintiff relies on the continuing course of conduct doctrine to toll the statute of repose for the present action. The plaintiff submits to the court that "there is a genuine issue of material fact as to whether Dr. Delfini had an ongoing duty to diagnose and treat the surgical complications revealed in the August 30, 1999 CT scan." "The continuous 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." Blanchette, 229 Conn. at 276.
In order to determine whether to grant the "defendant's motion for summary judgment in the context of the continuing course of conduct doctrine, we must determine if there is a genuine issue of material fact with respect to three factors." Neuhaus, 280 Conn. at 202. Specifically, we must assess whether `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 wrongdoing; and (3) continually breached that duty.' " Id. (quoting Witt v. St. Vincent's Medical Center, 252 Conn. 363, 370, 746 A.2d 753 (2000)). The application of the continuing course of conduct doctrine to the present facts depends upon whether Dr. Delfini owed a continuing duty to the plaintiff that was related to the alleged wrongdoing. As explained, the court finds Dr. Delfini owed no such duty, and, therefore, the continuing course of conduct doctrine does not serve to toll the statute of limitations for the present action.
The first prong of the continuing course of conduct doctrine requires the court to consider whether there is a genuine issue of material fact with regard to whether the defendant committed an initial wrong upon the plaintiff. Witt, 252 Conn. at 370. The plaintiff alleges in the fourth count of the complaint that the plaintiff's injuries were "the direct and proximate result of the ongoing and continuous failure of Dr. Delfini and Ronald D. Delfini, D.D.S., P.C. to use the degree of skill and care ordinarily required of periodontists in the diagnosis and treatment of patients." While the Delfini defendants dispute the claim of negligence brought against them, they have not presented evidence sufficient to eliminate any genuine issue of material fact as to whether they committed an initial wrong upon the plaintiff. Therefore, viewing the evidence in the light most favorable to the nonmoving party, the plaintiff has made sufficient allegations to establish the defendant committed an initial wrong upon the plaintiff. As such the first prong of the continuing course of conduct doctrine is satisfied.
The second prong of the continuing course of conduct doctrine is the main controversy before the court. The second prong asks whether there is a genuine issue of material fact with regard to whether the defendant owed the plaintiff "a duty that remained in existence after commission of the original wrong related thereto." (Citation omitted; internal quotation omitted.) Id. at 371. "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." (Citation omitted; internal quotation omitted.) Blanchette, 229 Conn. at 275. The determination of whether a continuing duty is owed to the plaintiff in this matter is a question of law. Nieves v. Cirmo, 67 Conn.App. 576, 581, 787 A.2d 650 (2002).
The plaintiff does not allege there was a special relationship between the parties giving rise to a continuing duty. The plaintiff also has not alleged that a special relationship was created by way of the continuous course of treatment doctrine. "In the absence of either of those showings, the plaintiff needed to demonstrate the existence of a genuine issue of material fact as to whether the defendant had committed some affirmative acts of misconduct or acts of omission that related to the alleged initial negligent act." Hernandez v. Cirmo, 67 Conn.App. 565, 570, 787 A.2d 657 (2002).
"When determining whether tolling under the continuous course of conduct doctrine is permissible, . . . continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct." Neuhaus, 280 Conn. at 203. The plaintiff asserts there is an issue of material fact regarding whether the Delfini defendants' failure to follow-up with the plaintiff regarding the August 1999 CT scan and refer her for appropriate treatment constitutes an omission related to the alleged initial negligent act. The plaintiff argues that Delfini had a continuing duty to do so.
In support of this the plaintiff offers an expert affidavit asserting that the Delfini omission breached the standard of care by failing to follow up with the plaintiff, and report the results from the August 1999 CT scan. Whether a legal duty exists, however, is a question of law that is distinct from the applicable standard of care. Id. at 208. "To avail herself of the continuing course of conduct doctrine on the basis of a claim of a negligent failure to warn, the plaintiff needed to produce evidence that demonstrated that the defendant was aware of a risk that would have triggered a duty to warn." Nieves, 67 Conn.App. at 584.
To succeed in applying the continuing course of conduct doctrine the plaintiff must submit evidence demonstrating that Dr. Delfini was aware of an increased risk to the plaintiff regarding the pathology discovered in the August 1999 CT scan. The plaintiff relies on Witt v. St. Vincent's Medical Center, 252 Conn. 363, 746 A.2d 753 (2000), and Sherwood v. Danbury Hospital, 252 Conn. 193, 746 A.2d 730 (2000) ( Sherwood I), to support her claim that the Delfini defendants owed her a continuing duty. In Witt, evidence was submitted to the court indicating the defendant had a concern about a previous diagnosis made to the plaintiff. The Supreme Court held this evidence raised an issue of material fact as to whether the defendant owed the plaintiff a continuing duty to convey that concern and refer him for appropriate treatment. Witt, 252 Conn. at 376.
In Sherwood I evidence was initially submitted indicating the defendant hospital knew blood used in a transfusion involving the plaintiff had not been tested for the presence of human immunodeficiency virus antibodies. This evidence was relied on to create a genuine issue of material fact as to whether the defendant hospital had a continuing duty to the plaintiff to warn her of her increased risk of infection due to there being untested blood used in her transfusion. Sherwood, 252 Conn. at 212. The Supreme Court recently clarified the holding in Sherwood I in light of further evidence that the defendant hospital did not have actual knowledge units of blood used in blood transfusions had not been tested. In Sherwood v. Danbury Hospital, 278 Conn. 163, 896 A.2d 777 (2006) ( Sherwood II), the Supreme Court held there was no continuing duty owed by the defendant hospital to the plaintiff when the defendant hospital lacked actual knowledge of an increased risk for infection to the plaintiff Sherwood, 278 Conn. at 190.
The plaintiff has failed to introduce any evidence that indicates Dr. Delfini had a concern about the pathology revealed in the August 1999 CT scan or that he had actual knowledge the plaintiff was susceptible to an increased risk deriving from the August 1999 CT scan. As the Supreme Court has pronounced, "a continuing duty must rest on the factual bedrock of actual knowledge." (Citation omitted; internal quotation omitted.) Neuhaus, 280 Conn. at 203. Without evidence of " actual knowledge that [the Delfini defendants] may have improperly advised a patient" we are unable to impose a continuing duty on them related to the alleged wrongdoing herein. (Emphasis added.) Id. at 210. The Delfini defendants argue the facts presented herein are analogous to Hernandez v. Cirmo, 67 Conn.App. 565, 787 A.2d 657 (2002). The court agrees. In Hernandez the plaintiff argued that the defendant was aware of the presence of scar tissue on her fallopian tubes, and as a result should have also known that there were increased risks involved in the procedure. The plaintiff argued the defendant's failure to communicate those risks breached an ongoing duty owed to do so. The Appellate Court stated the plaintiff was required to provide evidence of the defendant's awareness of the risk, and noted "[s]peculative evidence about whether a defendant physician was aware of a specific medical risk cannot serve as a basis for opposition to a motion for summary judgment." Hernandez, 67 Conn.App. at 575. Because no evidence was presented demonstrating the awareness of a specific medical risk the Appellate Court found the defendant did not owe a continuing duty to the plaintiff.
Likewise here the lack of evidence relating to a specific concern or actual awareness of a specific medical risk on the part of Dr. Delfini is dispositive. The plaintiff has submitted no evidence to create an issue of fact as to whether Dr. Delfini had actual knowledge of a concern or of an increased risk relating to the plaintiff's condition, as indicated in the August 1999 CT scan results. Without such evidence there is no justification to invoke the continuing course of conduct doctrine to the present circumstances. See Neuhaus, 280 Conn. at 207 ("This timing restriction with respect to claims of malpractice against a health care provider represents a valid policy choice by the legislature that should be respected in all but the most exceptional circumstances because any tolling of the statue of limitations may compromise the goals of the statute itself." (Citation omitted; internal quotation omitted.)).
Since the court does not find that the Delfini defendants owed the plaintiff a continuing duty under the second prong of the Witt factors, there is no need to analyze whether they continually breached that duty to the plaintiff. As a result, this court concludes the continuing course of conduct doctrine does not apply and cannot serve to toll the statute of repose for the present action.
The court also finds support for its conclusion in that public policy would reject the creation of an ongoing legal duty on the part of the Delfini defendants under the facts presented by the plaintiff in this matter. The Supreme Court recently found no ongoing legal duty could be supported as a matter of public policy where the plaintiff was no longer under the defendant's care, but was instead under the care of a subsequent treating physician. Id. at 218. This recent decision is instructive to the present circumstances. Here, the plaintiff last consulted with Dr. Delfini on February 20, 2000. She cancelled a subsequent appointment, and then began treatment with a different physician on March 6, 2000. That physician had a copy of the August 1999 CT scan. It is contrary to public policy for the court to impose an ongoing duty on the Delfini defendants to inform the plaintiff as to the results of the August 1999 CT scan, absent evidence justifying it, when the plaintiff's subsequent physician also had a copy of the August 1999 CT scan results. As stated in Neuhaus, such a duplicative duty "would be extremely burdensome in that it would impose a similar duty on all physicians who subsequently become aware of a diagnosis made for a former patient." Id.
The court concludes the continuous treatment and continuing course of conduct doctrines do not toll the statute of repose in this matter. Viewing the evidence in the light most favorable to the plaintiff, the statute of repose could have been tolled until February 20, 2000, the last date when Dr. Delfini treated the plaintiff regarding her condition. The present action was not filed until March 23, 2004. As a result the statute of repose provision of General Statutes § 52-584 bars the present action. Therefore, the Delfini defendants' motion for summary judgment as to count four of the second amended complaint is granted.
B Count Five
The fifth count of the complaint alleges the Delfini defendants failed to obtain the informed consent of the plaintiff by failing to advise the plaintiff of the surrounding risks associated with the surgeries performed. The Supreme Court has stated where a patient seeks recovery based upon a lack of informed consent the claim is a cause of action in malpractice and governed by General Statutes § 52-584. Lambert v. Stovell, 205 Conn. 1, 5-6, 529 A.2d 710 (1987). The above discussion regarding the doctrines of continuous treatment and continuing course of conduct are incorporated here leading to the conclusion that the statute of repose was not tolled in this present matter. As a result, the statute of repose applies equally to bar the fifth count of the complaint. Therefore, the Delfini defendants' motion for summary judgment as to count five is granted as well.
C
The Delfini defendants' motion for summary judgment as to counts four and five is granted.