Opinion
FSTCV136019700S
02-05-2016
Lorianne Pelletier v. Aesthetic Surgery Center, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (127.00)
TAGGART D. ADAMS, JUDGE TRIAL REFEREE.
I. FACTUAL AND PROCEDURAL HISTORY
In this action, the defendants, Aesthetic Surgery Center, LLC, and Doctor David Passaretti, M.D., move for summary judgment on statute of limitations grounds. The now self-represented plaintiff, Lorianne Pelletier, asserts that either the continuous course of conduct doctrine or the continuous treatment doctrine serves to toll the statute of limitations.
The following is not in dispute: On September 27, 2010, and then on October 14, 2010, defendant Passaretti performed breast reconstruction procedures on the plaintiff. The plaintiff was subsequently treated for infections and other injuries allegedly related to the wounds associated with the procedures. She was admitted to Norwalk Hospital for the treatment of post-operation infections on January 4, 2011, and remained there until January 11. The plaintiff nonetheless remained the defendants' patient until April 19, 2011.
In her two-count complaint, containing identical claims against each defendant, the plaintiff alleges that her " injuries were a result of the [defendants'] failure to obtain the plaintiff's informed consent in that they failed to advise her" that she was a poor candidate for the aforementioned procedures, and failed to offer her alternative implant solutions. The defendants were served with this complaint on July 18, 2013.
The complaint and the amended complaint are dated July 16, 2013, although the notice of amendment is dated September 23, 2013. (#102.00.) Moreover, the original complaint was not filed with the court until September 4, 2013. Because " [a] civil action is commenced by service of process"; Chestnut Point Realty, LLC v. East Windsor, 158 Conn.App. 565, 571, 119 A.3d 1229, cert. granted on other grounds, 319 Conn. 928, 125 A.3d 203 (2015); this action was commenced on July 18, 2013.
The defendants filed a motion for summary judgment on November 16, 2015 (#127.00). The plaintiff filed an opposition and memorandum on January 5, 2015 (## 128.00; 130.00), and the defendants filed a reply on January 7 (#129.00). The court heard oral arguments on January 11, 2015.
The defendants' memorandum in support was filed three days earlier, on November 13, 2015. (#126.00.) Various exhibits were attached in support of the motion, yet the plaintiff's deposition transcript dated August 12, 2015 (Transcript) is the only submission relevant to the outcome of this motion (Ex. E). The defendant did not submit any exhibits.
II. DISCUSSION
" Practice Book § 17-49 provides that summary 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.' A party moving for summary judgment is held to a strict standard . . . To satisfy [this] burden, the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Citation omitted; internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
II. A. STATUTE OF LIMITATIONS
" Summary judgment may be granted where the claim is barred by the statute of limitations . . . Summary judgment is appropriate on a statute of limitations ground when the material facts concerning the statute of limitations [are] not in dispute . . ." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). " [I]n the context of a motion for summary judgment based on a statute of limitations defense, a defendant typically meets its initial burden by demonstrating that the action had commenced outside of the statutory limitation period . . . When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." (Citations omitted.) Id., 321.
The defendants argue that the plaintiff's cause of action accrued on January 11, 2011 at the latest, the date that she acknowledges the " actionable harm." Pursuant to General Statutes § 52-584, the plaintiff therefore had two years from this date to commence the action, but did not do so until July 18, 2013, and her claim is therefore barred by the statute of limitations.
General Statutes § 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 . . ."
" In the context of applying § 52-584 to decide whether a particular action was commenced in a timely fashion, [courts] have stated that an injury occurs when a party suffers some form of actionable harm . . . Actionable harm occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action." (Citation omitted; internal quotation marks omitted.) Lindsay v. Pierre, 90 Conn.App. 696, 700, 879 A.2d 482 (2005). " The statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof." (Internal quotation marks omitted.) Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn.App. 311, 323, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000).
In the present case, the parties label the cause of action differently throughout the proceeding, but it is nonetheless clear that section 52-584 provides the statute of limitations for the plaintiff's claim because " where a patient seeks recovery against a physician based upon a lack of informed consent, he is bringing a 'malpractice' action as contemplated by § 52-584. Lambert v. Stovell, 205 Conn. 1, 5-6, 529 A.2d 710 (1987); see also Duffy v. Flagg, 279 Conn. 682, 686, 905 A.2d 15 (2006) (recognizing negligence action alleging malpractice and lack of informed consent). Regardless, when the plaintiff was asked if she " believed that there was malpractice or lack of informed consent . . . well before the summer of 2011, " the plaintiff responded: " Yes. I believe there was malpractice way before that." (Transcript, p. 22.) The plaintiff additionally responded in the affirmative when asked if she believed that there had been malpractice by January 4, 2011. (Transcript, p. 24.) The plaintiff's response was the same when asked if she believed that " Doctor Passaretti had failed to inform you about all of the possibilities associated with his procedures" in January 2011. (Transcript, p. 25.) Although the deposition may be the only relevant evidence that the defendants have submitted, the plaintiff's response indicates her belief, or put otherwise, her discovery, that she had suffered some form of actionable harm more than two years before her lawsuit was started.
For example, in paragraph six of the complaint, the plaintiff states her injuries " were a result of the defendants' failure to obtain the plaintiff's informed consent in that they failed to advise her" that she was a poor candidate for the surgery and did not offer alternative solutions. Counsel for the defense refers to the action as one for malpractice. (Transcript, pp. 22-24.) In her opposition, the plaintiff states that " the defendant committed negligence . . ." In its reply, the defendants revert to labeling the action as a " claim for lack of informed consent."
" A civil action is commenced by service of process." Chestnut Point Realty, LLC v. East Windsor, 158 Conn.App. 565, 571, 119 A.3d 1229, cert. granted on other grounds, 319 Conn. 928, 125 A.3d 203 (2015). The marshal's return of service indicates that the defendants were served with the summons on July 18, 2013, approximately two and a half years after the plaintiff discovered the actionable harm, and consequently six months after the statute of limitations had expired. Accordingly, the defendants have met their burden of proving that the action is barred under section 52-584.
II. B. EQUITABLE TOLLING
Although the defendants have established that there exists no material fact as to the expiration of the statute of limitations, the plaintiff counters that her complaint includes allegations of the defendants' continuing course of conduct and continuing course of treatment, and there exists issues of fact as to whether the statute of limitations should be tolled. " [T]he primary difference between the doctrines is that the [continuing course of treatment doctrine] focuses on the plaintiff's reasonable expectation that the treatment for an existing condition will be ongoing, while the [continuing course of conduct doctrine] focuses on the defendant's duty to the plaintiff arising from his knowledge of the plaintiff's condition." (Emphasis in original.) Grey v. Stamford Health System, Inc., 282 Conn. 745, 755, 924 A.2d 831 (2007). The court will address each of these doctrines in the medical malpractice context as they relate to the plaintiff's claim.
The defendant argues that these doctrines are inapplicable to claims of lack of informed consent, and the court acknowledges that a " lack of informed consent claim is a different cause of action from [a] claim of [medical] negligence." (Internal quotation marks omitted.) Torres v. Carrese, 149 Conn.App. 596, 618, 90 A.3d 256, cert. denied, 312 Conn. 912, 93 A.3d 595 (2014). The defendants could have clarified any confusion through a request to revise; Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988); and, when appropriate the court may grant leniency towards a self-represented party. Weinberg v. Weinberg, 89 Conn.App. 649, 655, 874 A.2d 321 (2005). The court will therefore consider these doctrines in the context of the potential causes of action set forth by the plaintiff.
A. Continuous Treatment Doctrine
Our Supreme Court has " recognized . . . that the statute of limitations, in the proper circumstances, may be tolled under the continuous treatment . . . doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date . . . As a general rule, [t]he [s]tatute of [l]imitations 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 . . . 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." (Citation omitted; internal quotation marks omitted.) Grey v. Stamford Health System, Inc., supra, 282 Conn. 751.
" [T]o establish a continuous course of treatment for purposes of tolling the statute of limitations in medical malpractice actions, the plaintiff is required to prove: (1) that he or she had an identified medical condition that required ongoing treatment or monitoring; (2) that the defendant provided ongoing treatment or monitoring of that medical condition after the allegedly negligent conduct, or that the plaintiff reasonably could have anticipated that the defendant would do so; and (3) that the plaintiff brought the action within the appropriate statutory period after the date that treatment terminated." (Footnotes omitted.) Id., 754-55. Consequently, when the plaintiff does not expect a particular medical professional to provide ongoing treatment for a particular malady, the doctrine is inapplicable. See, e.g., id., 757 (" in the absence of any evidence that the plaintiff reasonably expected that continuing treatment for a particular condition would be required, the policy considerations underlying the continuous treatment doctrine are not implicated"); Zielinski v. Kotsoris, 279 Conn. 312, 328, 901 A.2d 1207 (2006) (doctrine inapplicable to specialist not responsible for monitoring patient's treatment); Golden v. Johnson Memorial Hospital, Inc., 66 Conn.App. 518, 529, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001) (doctor unaware of misdiagnosis and plaintiff's consultations with other doctors regarding treatment terminates plaintiff's expectation that specialist would provide ongoing treatment).
" The continuous treatment doctrine is not a broad remedial doctrine designed to ameliorate the harsh consequences of applying the statute of limitations to bar medical malpractice actions whenever a plaintiff has alleged reliance on a negligent misdiagnosis. Rather, the doctrine is rooted in specific, narrowly circumscribed policy concerns that involve the interests of both plaintiffs and defendants." Grey v. Stamford Health System, Inc., supra, 282 Conn. 762-63. " [T]he policy underlying the continuous treatment doctrine is to allow the plaintiff to complete treatment for an existing condition with the defendant and to protect the doctor-patient relationship during that period." Id., 755.
In her deposition, the plaintiff confirmed that she last visited Doctor Passaretti on April 19, 2011. (Transcript, p. 25.) When asked why she did not subsequently visit him, the plaintiff responded that she did not feel comfortable returning. (Transcript, p. 25.) The nature of her visit is unclear, but nonetheless this admission demonstrates that the plaintiff no longer expected Doctor Passaretti to treat her considering she alleges in her complaint that she was the defendants' patient through April 19, 2011. Beyond this, the plaintiff sought the assistance of other medical professionals for her post-operative care following the surgery, as well as during and subsequent to her hospital stay in January 2011. (Transcript, pp. 53, 61, 69-70.) If the continuous treatment doctrine did apply, it would therefore only toll the statute of limitations until April 19, 2011, the date the plaintiff concedes that she no longer expected treatment from Doctor Passaretti. Therefore, she had to serve the defendants by April 19, 2013 or the statute of limitations would bar this action.
B. Continuous Course of Conduct Doctrine
" In the medical malpractice context, the continuing course of conduct doctrine requires the plaintiff to prove that 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." (Internal quotation marks omitted.) Grey v. Stamford Health System, Inc., supra, 282 Conn. 753. " Under the 'modern formulation' of the continuing course of conduct doctrine, [t]o support a finding of a continuing course of conduct that may 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." (Internal quotation marks omitted.) Zielinski v. Kotsoris, supra, 279 Conn. 322. " The gravamen of the continuing course of conduct doctrine is that a duty continues after the original wrong is committed." Golden v. Johnson Memorial Hospital, Inc., supra, 66 Conn.App. 525. To show that a material issue of fact exists, the plaintiff must therefore show that the medical professional remained under a duty to the plaintiff following the surgery. E.g., id., 525-26, Zielinski v. Kotsoris, supra, 279 Conn. 326. Moreover, " the continuing course of conduct doctrine has no application after the plaintiff has discovered the harm." Rosato v. Mascardo, 82 Conn.App. 396, 405, 844 A.2d 893 (2004).
The plaintiff cites to various cases in which courts applied the continuing course of conduct doctrine. In Blanchette v. Barrett, 229 Conn. 256, 278-79, 640 A.2d 74 (1994), our Supreme Court found that a family's longstanding physician had an ongoing duty to the plaintiff. In Witt v. St. Vincent's Medical Center, 252 Conn. 363, 366, 746 A.2d 753 (2000), eleven years after failing to properly diagnose the plaintiff, the defendant sent another doctor a report with a note stating: 'I'd be interested in a follow up on this patient!! I think at the time we were concerned that [the plaintiff] might be evolving a small lymphocytic lymphoma/CCL."
These cases are readily distinguishable from the present case. As mentioned, the plaintiff stated that she was hospitalized in January 4, 2011, and at that time, believed that the defendants had committed malpractice. (Transcript, p. 22.) She also stated that in January 2011, she believed that Doctor Passaretti failed to inform her of all of the potential risks in the procedure. (Transcript, p. 25.) The doctrine was no longer applicable once the plaintiff discovered this actionable harm. Moreover, she has conceded that she was no longer the defendants' patient after April 19, 2011, thereby relieving the defendants of their duty.
III. CONCLUSION
While the defendant is correct that the application of the tolling doctrines is " conspicuously fact bound, " she has the burden of proving that one of the doctrines applies. She states in her complaint and her deposition that she was no longer the defendants' patient after April 19, 2011. She did not expect further treatment from the defendants, and the defendants owed her no further duty. Accordingly, the defendants' motion for summary judgment on statute of limitations grounds is granted.