Opinion
HHBCV145016102S
12-14-2015
John Doe #2 v. Robert Rackliffe
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Robert E. Young, J.
FACTS AND PROCEDURAL HISTORY
On October 21, 2014, the plaintiff, John Doe #2, filed a two-count complaint against the defendant, Robert Rackliffe, alleging the following facts. The defendant was a doctor specializing in pediatric medicine in New Britain. The plaintiff became a patient of the defendant at age four or five in 1976 or 1977, and remained the defendant's patient until 1983 or 1984, when the plaintiff was eleven or twelve years old. During that period, the plaintiff visited the defendant annually for physical checkups. On numerous occasions during these checkups, the defendant digitally penetrated the plaintiff's anus. This conduct resulted in severe and potentially permanent physical and emotional injury.
The first count alleges a claim of sexual assault by the defendant. The second count alleges medical malpractice in that the defendant knew or should have known that routine digital penetration of a child without clear medical indication, and in the absence of parental consent, violates the standard of care of pediatric medicine. The plaintiff attached to his complaint a certificate of good faith and the opinion letter of a similar healthcare provider, pursuant to the dictates of General Statutes § 52-190a(a).
On May 15, 2015, the plaintiff filed an amended complaint, adding two new counts. The first count remains a claim of sexual assault. The second count adds a claim of intentional infliction of emotional distress. The third count is the former second count claiming negligence in the form of medical malpractice. The fourth count newly asserts a claim of negligent infliction of emotional distress.
The defendant has filed a motion for summary judgment as to the third and fourth counts of the amended complaint, asserting that they are time-barred. The plaintiff has filed a memorandum in opposition, to which the defendant filed a reply brief. The matter was heard at short calendar on October 26, 2015.
Each party has attached to their submissions uncertified and unauthenticated documents. Although each party has failed to comply with Practice Book § 17-45, they agree that the court should consider the other's submissions. Therefore, the court will consider these submissions as if they were properly certified and authenticated. See, Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006); but see Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974 , cert. denied, 306 Conn. 905, 52 A.3d 732 (2012).
LEGAL STANDARD
" 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his 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 . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed 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]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
" Summary judgment may be granted where the claim is barred by the statute of limitations . . . Summary judgment is appropriate on statute of limitations grounds 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 special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact 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." Id., 321.
ANALYSIS
In his motion for summary judgment, the defendant argues that counts three and four of the operative complaint are time barred by the statute of limitations. The defendant asserts that the counts sound in medical malpractice, which are limited by a three-year statute of limitations under General Statutes § 52-584. Since the plaintiff's cause of action in counts three and four were brought more than three years after the alleged act or omission, the defendant seeks partial summary judgment on these counts as a matter of law.
General Statutes § 52-584 provides, in relevant part: " No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ."
In his opposition to the motion, the plaintiff argues that counts three and four sound in medical negligence, and the " medically negligent procedure was inextricably intertwined and inseparable" from the sexual assault allegations in counts one and two. Hence, " under this unique set of facts, where medical negligence has the effect upon the plaintiff of a sexual assault . . . § 52-577d is the appropriate statute of limitations, and the case is not time barred." The plaintiff contends that because the operative complaint was filed approximately twenty-eight years since the alleged act, the motion for partial summary judgment should be denied.
General Statutes § 52-577d provides: " Notwithstanding the provisions of section 52-577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority."
In his reply to the opposition, the defendant further argues that counts three and four do not contain allegations that the plaintiff's harm was caused by sexual assault, sexual abuse or sexual exploitation. Thus, neither count is governed by the statute of limitations in § 52-577d.
" It is basic that common sense must be used in statutory construction and that [a] statute should not be interpreted in any way to thwart its purpose . . . [or so as to lead] to absurd consequences and bizarre results." Keeney v. Fairfield Resources, Inc., 41 Conn.App. 120, 132, 674 A.2d 1349 (1996). It is a basic rule of statutory construction that " absent manifest intent to repeal an earlier statute, when general and specific statutes conflict they should be harmoniously construed so the more specific statute controls." McKinley v. Musshorn, 185 Conn. 616, 624, 441 A.2d 600 (1981).
" It is clear from the legislative history of § 52-577d that the purpose of the 1991 amendment [extending the statute of limitations to seventeen years] was to allow victims to recall sexual abuse that had been repressed, and to bring an action against the perpetrators of that abuse as part of the victim's healing process." Giordano v. Giordano, 39 Conn.App. 183, 191, 664 A.2d 1136 (1995). " A review of the record of debate on this bill [P.A. 86-401] demonstrates that it was intended to provide minor victims of sexual abuse with an opportunity to exercise their rights against the offender once they had attained the age of majority and could exercise control over their lives. See generally 29 H.R. Proc., Pt. 12, 1986 Sess., pp. 4387-97." Todd M. v. Richard L., 44 Conn.Supp. 527, 532, 696 A.2d 1063 (1995).
In certain instances of alleged sexual abuse, sexual exploitation or sexual assault, Superior Courts have applied the statute of limitations in § 52-577d rather than § 52-584. In Doe v. Burns, Superior Court, judicial district of Middlesex, Docket No. CV-03-0100215-S (July 19, 2005, Aurigemma, J.) (39 Conn. L. Rptr. 815), the court chose the statute of limitations in § 52-577d, instead of § 52-584, to the plaintiff's claim of negligent supervision against her school. " Here, the plaintiff alleges negligence and seeks damages for personal injury, including emotional distress, caused by sexual assault and abuse. General Statutes § 52-577d is the statute of limitations most specific to the present action." Id. Finding that the action was brought within the time limit in § 52-577d, the court denied the defendants' motion for summary judgment to the count alleging negligence supervision. In Doe v. Norwich Roman Catholic Diocesan Corp., Superior Court, judicial district of Middlesex, Docket No. CV93-69529 (June 27, 1996, Stengel, J.) (17 Conn. L. Rptr. 267), the court also applied the statute of limitations in § 52-557d in a complaint against the defendants (the priest and the diocese) for sexual abuse, even when the plaintiff's cause of action sounded in negligence. " The recent decisions of several courts that have addressed these issues indicate that § 52-577d is the applicable statute of limitations under the circumstances, and that the statute is not limited to actions against the actual perpetrators of the abuse." Id. See also, See v. Bridgeport Roman Catholic Diocesan Corp., Superior Court, judicial district of Fairfield, Docket No. CV93-0300948S (September 16, 1993, Freedman, J.) (10 Conn. L. Rptr. 51) (court applied statute of limitations in § 52-577d rather than § 52-584 in negligence claim against defendant-diocese, because injuries alleged by plaintiffs " were a result of the acts and omissions of the defendants").
Additionally, in Truex v. Rogers, Superior Court, judicial district of Hartford, Docket No. CV-04-0833129-S (May 10, 2006, Keller, J.) (41 Conn. L. Rptr. 330), the court stated, " several Connecticut courts have held that in actions for damages to a minor caused by sexual abuse, the specific statute of limitations contained in General Statutes § 52-577d governs over the more general provisions in § § 52-584 and 52-577." Id. See also, Lawson v. Lawson, Superior Court, judicial district of Litchfield, Docket No. CV-99-0080780-S (January 23, 2001, DiPentima, J.) (29 Conn. L. Rptr. 264) (court held plaintiff's negligence action against wife of alleged sexual abuser was timely under § 52-577d); Todd M. v. Richard L., supra, 44 Conn.Supp. 532 (court granted motion to strike special defense of § 52-584, concluding that § 52-557d applied to defendant school bus personnel in a claim of negligence resulting in sexual abuse); Almonte v. New York Medical College, 851 F.Supp. 34 (D.Conn., 1994) (court held § 52-577d applied in negligence action against third-party hospital and analyst as non-perpetrators of sexual abuse).
In the cases set forth above, the courts applied the extended statute of limitations under § 52-577d to negligence claims against third parties that had various relationships to the alleged sexual abuser (i.e., employer, spouse, supervisor). The third parties in those cases were not the alleged perpetrators of the sexual abuse, sexual exploitation or sexual assault.
" The facts of the present case are analogous to both Almonte and the Bridgeport Roman Catholic Diocesan Corp. cases. The facts include actions by individuals over which the defendants have supervision and control. These individuals allegedly perpetrated abuse of a sexual nature against a minor which, in the exercise of reasonable and proper care, the non-perpetrator defendants, it is maintained, could and should have prevented. The courts in those cases determined that the applicable statute of limitations was provided by § 52-577d which specifically addresses actions for personal injuries caused by sexually abusive behavior." Todd M. v. Richard L., supra, 44 Conn.Supp. 537.
However, in the present matter, the defendant is not a third party, but rather the alleged perpetrator of prohibited sexual conduct. Additionally, the plaintiff alleges in counts three and four, negligence and negligent infliction of emotional distress against the defendant. Paragraph 5 in count three alleges that " the defendant knew or in the exercise of reasonable care should have known that digital examinations of the anus of a prepubertal and/or postpubertal child, performed routinely, without a clear indication, and in the absence of the express consent of a parent, is a violation of the standard of care for pediatric medicine." Count four incorporates this paragraph and further alleges that the " defendant's conduct towards plaintiff created an unreasonable risk of causing plaintiff emotional distress" and that the " defendant knew or should have known that such conduct would cause emotional distress . . ." Section § 52-577d does not state negligence as a cause of action; rather, it only provides for actions caused by " sexual abuse, sexual exploitation or sexual assault." Contrastingly, § 52-584 does include actions " caused by negligence . . . or by malpractice of a physician . . ."
In Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 358, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001), the Appellate Court outlined a three-factor test in determining whether a claim sounds in medical malpractice: " whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment."
The Trimel three-factor test provides guidance in determining whether the allegations in counts three and four sound in medical malpractice under § 52-584. Factors one and two are satisfied because the defendant is being sued in his capacity as a medical professional, and the alleged negligence arises out of the medical professional-patient relationship between the parties when the plaintiff was the defendant's patient from approximately 1976-77 through 1983-84. Factor three also supports interpreting the alleged negligence as malpractice because the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment. Paragraph 4 in count three claims that during numerous occasions during the alleged period of treatment, when the plaintiff presented to the defendant's office as a patient, the defendant " digitally penetrated the plaintiff's anus." Paragraph 5 further alleges that the defendant knew, or should have known, that " digital examinations of the anus of a prepubertal and/or postpubertal child . . . is a violation of the standard of care for pediatric medicine." The allegations contained in paragraphs 4 and 5 of count three are substantially related to medical diagnosis involving the exercise of medical judgment. In applying the Trimel test, it is clear that counts three and four of the plaintiff's complaint sound in negligent medical malpractice.
Contrastingly, Superior Court cases in which courts have applied the statute of limitations in § 52-577d over § 52-584 did not sound in medical malpractice allegations and specifically applied to third-party/non-perpetrator defendants. See, e.g., Doe v. Burns, supra, 39 Conn. L. Rptr. 815; Lawson v. Lawson, supra, 29 Conn. L. Rptr. 264; Todd M. v. Richard L., supra, 44 Conn.Supp. 527.
In the present case, count three entirely sounds in a medical malpractice allegation. Count three has neither alleged nor mentioned the required action of sexual assault, sexual abuse or sexual exploitation, as intended by the legislative purpose of § 52-577d. Rather, the cause of action alleged in count three arises from medical conduct, and § 52-584 provides the appropriate statute of limitations.
Compare St. Paul Fire & Marine Ins. Co. v. Shernow, 222 Conn. 823, 830, 610 A.2d 1281 (1992) (Supreme Court affirmed trial court's determination that professional liability insurance covered defendant's alleged sexual assault and dental malpractice against his patient because " the medically negligent procedure is so inextricably intertwined and inseparable from the intentional conduct that serves as the basis for the separate claim of a sexual assault").
Count four of the plaintiff's complaint incorporates paragraphs 1-5 of count three and is a claim of negligent infliction of emotional distress arising from medical malpractice. " [I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 446, 815 A.2d 119 (2003); Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978). The statute of limitations in § 52-584 pertains to medical malpractice actions and mental suffering, which include claims for negligent infliction of emotional distress. Rivera v. Double A Transportation, Inc., 248 Conn. 21, 30-31, 727 A.2d 204 (1999). Count four has neither alleged nor mentioned the required action of sexual assault, sexual abuse or sexual exploitation, as intended by the legislative purpose of § 52-577d. Rather, the cause of action alleged in count four arises from medical conduct, and § 52-584 provides the appropriate statute of limitations.
There is no genuine issue of material fact that the allegations of counts three and four are claims of medical malpractice, rather than sexual assault, sexual abuse or sexual exploitation. Based on the allegations asserts in the operative complaint, the last pediatric physical checkup the defendant performed on the plaintiff would have been in 1984. Because the statute of limitations under § 52-584 is applicable for the negligent medical malpractice claims of the third and fourth counts, and provides a three-year period, such claims brought in 2015 are untimely.
ORDER
The defendant's motion for summary judgment (133.00) as to the third and fourth counts of the amended complaint is granted.