Opinion
No. CV08-5003115-S
March 2, 2010
MEMORANDUM OF DECISION RE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT #169 and #175
At issue are two separate motions for summary judgment filed by the defendants. Motion for summary judgment #169 is the defendants Midstate Radiology Associates, LLC and Dr. Gary J. Dee's motion. Motion for summary judgment #175 is the defendant Dr. Lucille A. Soldano's motion. For the reasons discussed below, motions for summary judgment #169 and 175 are denied.
I BACKGROUND
By revised complaint dated June 18, 2008, the plaintiff, Debra C. Jarett (Jarett), alleges medical malpractice on the part of the defendants Midstate Radiology Associates, LLC (Midstate), Dr. Gary J. Dee (Dee) and Dr. Lucille A. Soldano (Soldano), arising out her treatment at Midstate Medical Center in Meriden, Connecticut. In her revised complaint, Jarett alleges the following relevant facts.
The present case and Jarett's initial action against Midstate Medical Center for its "failure to diagnose and treat plaintiff's condition of Cauda Equina Syndrome during emergency room visits on January 27 and January 30, 2005," Jarett v. Midstate Medical Center, Docket No. NNI CV 07 5001630, were consolidated by the court, Taylor, J., on May 20, 2008.
At all relevant times, Midstate was a Connecticut corporation engaged in the practice of providing radiological services at Midstate Medical Center. At all relevant times, Soldano and Dee were physicians and agents, servants and/or employees of Midstate. On or about January 25, 2005, Jarett visited the emergency room at Midstate Medical Center with complaints of severe back pain and an inability to urinate or move her bowels. Jarett was discharged with a diagnosis of acute low back pain.
On January 30, 2005, Jarett returned to Midstate Medical Center's emergency room by ambulance, "complaining of severe back pain with radiation, incontinence, difficulty urinating, difficulty with ambulation and lack of bowel movements for eight days." Jarett underwent CT scans of her pelvis, lumbosacral spine and lumbar spine by the defendant Midstate at that time. On that day, a "wet-reading," or preliminary read of lumbar spine CT scans was performed by Soldano, a radiologist employed by Midstate. Soldano interpreted the CT scans "as indicating no herniated nucleus pulposus, no evidence of osteomyelitis and no acute disease." Soldano's CT scan interpretation was relayed to Dr. Gerard Curran, the emergency room physician attending to Jarett. Jarett was subsequently discharged with care instructions and told to follow-up with her primary care physician.
On January 31, 2005, Dee, a radiologist employed by Midstate, performed a final reading of the lumbar CT scans taken on January 30, 2005. Dee's reading included a finding of "central right-sided herniated disc at L4-L5 causing moderate to severe spinal stenosis and broad based bulging disc at L5-S1 causing moderate spinal stenosis." The final reading as interpreted by Dee materially differed from the initial "wet" reading performed by Soldano. The final reading as interpreted by Dee was not transmitted to either the emergency department at Midstate Medical Center, including the emergency room physician attending to Jarett on January 30, 2005, or to Jarett herself.
On or about February 3, 2005, Jarett was seen by an orthopedic physician who diagnosed her with cauda equina syndrome and immediately referred her to Yale-New Haven Hospital for emergency treatment. On or about February 3, 2005, Jarett was admitted to Yale-New Haven Hospital and underwent a complete lumbar laminectomy and diskectomy for an L4/5 herniated nucleus pulposus with cauda equina syndrome. Jarett alleges that the defendants' negligence, carelessness and departure from the applicable standard of care caused her to sustain serious personal injuries and financial losses.
Specifically, Jarett alleges, inter alia, that Soldano was negligent in that she improperly and/or inadequately interpreted the lumbar spine CT scan and relayed an inaccurate and/or inadequate wet reading of the scan to the emergency department staff attending to Jarett.
Jarett alleges that Midstate and Dee improperly failed to inform her and/or her treating physician of the different results from her initial CT scan reading and her final CT scan reading.
On December 29, 2008, Soldano filed an answer and special defense to Jarett's revised complaint, alleging that her suit is barred by the applicable statute of limitations, General Statutes § 52-584. Jarett filed a reply to Soldano's special defense on January 12, 2009. On January 21, 2009, Midstate and Dee filed separate answers to the revised complaint. Midstate and Dee both allege a statute of limitations special defense pursuant to § 52-584. Jarett filed a reply to Midstate and Dee's special defense on February 2, 2009 and August 26, 2009.
On August 28, 2009, Midstate and Dee filed a joint motion for summary judgment as to the first, second and fourth counts of Jarett's revised complaint and a memorandum of law in support thereof. On October 1, 2009, Soldano filed a motion for summary judgment as to the third count of the plaintiff's revised complaint and a memorandum of law in support thereof. Jarett filed a single memorandum in opposition to the defendants' motions for summary judgment on October 30, 2009, noting that the issues pertaining to the two motions arises out of the same events and involve similar argument. The matter was heard at short calendar on January 25, 2010.
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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . 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 judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
"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.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). "[S]ince a single valid defense may defeat recovery, [a movant's] motion for summary judgment should be denied when any defense presents significant fact issues that should be tried." (Internal quotation marks omitted.) Union Trust Co. v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996). "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). Summary judgment is appropriate on statute of limitations grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).
In Midstate and Dee's motion for summary judgment, they argue that "[d]espite the fact that the alleged injury occurred no later than February 3, 2005, the Plaintiff failed to initiate this action against Midstate Radiology and Dr. Dee until early 2008. According to the Marshal's Return of Service, Defendants Dee and Midstate Radiology were served on January 29, 2008. The Plaintiff's action was thus brought well over 2 years from the date the Plaintiff sustained and/or discovered her alleged `injury.'" (Emphasis in original.) Midstate and Dee thus argue that Jarett's action against them is time-barred pursuant to § 52-584.
In Soldano's motion for summary judgment, she contends that Jarett discovered "a breach of duty by the defendant" and "a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff" no later than February 3, 2005. Soldano concludes that "the applicable two-year statute of limitations period expired no later than February 3, 2007, and therefore Jarett's claim is time-barred by § 52-584 because "the plaintiff served Dr. Soldano with the original writ, summons and complaint on January 29, 2008."
In Jarett's opposition to the defendants' motions for summary judgment, she contends that the defendants argue for an incorrect statute of limitations date of February 3, 2005 by "citing to isolated portions of plaintiff's deposition testimony. Their analysis incorrectly assumes knowledge on the part of the plaintiff concerning the existence and discrepancy between the two radiological readings of her lumbar spine CT Scan taken on January 30, 2005, and, the identity of the defendant who performed the preliminary reading on January 30, 2005." Jarett maintains that "she was unaware on February 3, 2005 that there had been two separate inconsistent readings pertaining to her January 30 lumbar spine CT Scan and that the final reading had not been communicated to the emergency room physicians. Moreover, it was not until after the deposition of Linda Durhan, M.D. on January 2, 2008, that the plaintiff learned that although Dr. Durhan's name was on the preliminary `wet' reading, it was actually performed by" Soldano. Accordingly, Jarett argues that "material issues of fact exist as to whether the plaintiff timely filed her lawsuit against the defendants."
General Statutes § 52-584 governs the statute of limitations on actions alleging health care malpractice. 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 . . . [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, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
"In this case, because there is no question that the plaintiff brought this action within three years of the date of the initial [act complained of], our focus is on whether she brought this action within two years from the date when she first sustained or discovered her injury or, in the exercise of reasonable care, should have discovered her injury." Jackson v. Tohan, 113 Conn.App. 782, 787, 967 A.2d 634, cert. denied, 292 Conn. 908, 973 A.2d 104 (2009).
Neither Midstate, Dee nor Soldano argue in their respective motions for summary judgment that Jarett's action was brought over three years from the date of the act complained of. As acknowledged by Midstate, Dee and Soldano, the marshal's return of service for each party reflects the date of January 29, 2008. The earliest possible date that would reasonably qualify as the act being complained of is January 30, 2005, that being the date of Soldano's "wet reading" of Jarett's CT scans. As such, there is no question that Jarett has brought this action within the requisite three years.
"[T]he term injury is synonymous with legal injury or 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 . . . A breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence; they are therefore necessary ingredients for actionable harm . . . Furthermore, actionable harm may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another . . . In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run; a party need only have suffered some form of actionable harm . . . Finally, the determination of when a plaintiff in the exercise of reasonable care should have discovered actionable harm is ordinarily a question reserved for the trier of fact." Id., citing Lagassey v. State, 268 Conn. 723, 748-49, 846 A.2d 831 (2004).
The case of Jackson v. Tohan, supra, 113 Conn.App. 784, is instructive. In Jackson, the plaintiff underwent an initial surgery on October 24, 2003, by a physician and the assisting physician-defendant, whose identity and involvement in the surgery the plaintiff was then unaware of. Id. The plaintiff experienced uncharacteristic pain after the initial surgery, and on October 29, 2004, underwent an exploratory second surgery during which the physicians discovered that the plaintiff had been improperly injured during her initial surgery. Id., 785. The plaintiff underwent an emergency third surgery on October 30, 2003. Id. The plaintiff remained in the hospital, at times heavily medicated, until late November 2003. Id. The plaintiff testified, however, that by November she knew something "had been done wrong" during her initial surgery. Id. In February 2004, the plaintiff retained counsel who obtained her medical records. Id. The plaintiff filed suit against a physician from the initial surgery on May 13, 2005 and against the defendant on January 25, 2006. Id.
The Jackson defendant was granted summary judgment based on the argument that § 52-584 barred the plaintiff's claim because it was not filed within two years of the date of the injury, where the plaintiff knew by November 2003 that the initial surgeons had done something wrong, which constituted actionable harm. Id. The plaintiff filed a motion to reargue on grounds that "she did not know, nor could she reasonably have known, of the defendant's participation in her surgery until she obtained her medical records in February 2004." Id., 786.
On appeal, the plaintiff claimed "that the court improperly equated her knowledge that `something' had gone wrong during her first surgery with knowledge of actionable harm" and that "the identity of a potential tortfeasor is an essential element of actionable harm," so that the statute of limitations period does not begin to run until the plaintiff has actual or constructive notice of her identity. Id., 787-88. The plaintiff argued that although she was aware of "the breach of a duty and resulting harm by November 2003," she "did not know, nor could she reasonably have known, of the defendant's involvement in her surgery at that time." Id. The defendant, on the other hand, argued that "the fact that the defendant is clearly listed as the assisting surgeon on the operative report," which was available as early as October 29, 2003, at least should have made the plaintiff aware of actionable harm by the defendant at that time through the exercise of reasonable care. Id., 788-89.
The Appellate Court's analysis revolved around the plaintiff's testimony "at her deposition, without contradiction, that she was not informed that the defendant would be assisting in her surgery and that she did not receive any care from the defendant after her surgery." Id., 789. The court noted that although the operative report was available soon after the initial surgery, the plaintiff was heavily medicated and unable to obtain such on her own until February 2004. Id., 789-90. The court concluded that the question of whether the plaintiff reasonably should have obtained the report in question or ascertained the identity of the defendant prior to February of 2004, in light of the circumstances, was a question of fact not suitable for summary judgment. Id., 790.
In the present case, Jarett claims that "[t]he negligence of the radiologists and the radiology group . . . arises from the incorrect wet reading by Dr. Soldano and Dr. Dee's failure to relay or communicate the variance in results between the preliminary and final readings" to Jarett and Dr. Curran or any other emergency room physician. Jarett argues that this negligence was not and could not be discovered until the August 10, 2007 deposition of Dr. Curran; (Jarett's Exhibit E); Jarett's attending emergency room physician, the January 2, 2008 deposition of Dr. Durhan; (Jarett's Exhibit I); a radiologist employed by Midstate whose name appeared on the January 30, 2005 wet reading of Jarett's lumbar spine CT scan and the January 7, 2008 deposition of Dee. (Jarett's Exhibit G.)
Practice Book § 17-45 provides in relevant part: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." The Appellate Court has held that § 17-45 "contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005).
All deposition transcripts submitted into evidence by the parties for purposes of the present motions for summary judgment and opposition thereto have been certified or otherwise authenticated.
Jarett maintains, and the evidence supports, that a genuine issue of material fact exists as to whether she was aware of or should have been aware of the two conflicting readings of her lumbar spine CT scan before August 10, 2007; (Jarett's Exhibit C, pages 17-18, 100); and also as to when she was aware or should have been aware that the findings of the final lumbar spine CT scan reading were not relayed to the emergency room physicians, specifically Dr. Curran. (Jarett's Exhibit E, page 51.) Jarett presents evidence in the form of deposition testimony that it was not until the August 10, 2007 deposition of Dr. Curran that she learned that the final CT scan reading, which she contends was materially difference from the wet reading, was not communicated by Dee to her emergency room physicians. (Jarett's Exhibit E, pages 24, 51.) As such, Jarett has demonstrated a genuine issue of material fact exists as to when she learned that two readings of her lumbar spine CT scan were performed and as to when she learned that the final reading was not communicated by Dee to her emergency room physicians.
A further issue of material fact exists as to when Jarett knew or should have known that her treatment in Midstate Medical Center would have been different had Dr. Curran timely received the final CT scan reading information from Dee, which she argues should have contained the variance between her wet reading and final reading. (Jarett's Exhibit E, pages 51-53.) These genuine issues of material fact, which Jarett argues to be essential to the determination of actionable harm pursuant to § 52-584, are evidenced in Dr. Curran's August 10, 2007 deposition; (Jarett's Exhibit E); and Jarett's March 16, 2009 deposition. (Jarett's Exhibit C.)
Jarett also presents evidence that a genuine issue of material fact exists as to when she knew or should have known about the role of Soldano. Jarett maintains that she did not know that Soldano performed the wet reading of her lumbar spine CT scan until the January 2, 2008 deposition of Dr. Durhan, due to the fact that Dr. Durhan's name appears on the preliminary wet reading dated January 30, 2005. (Jarett's Exhibit I, page 21; Jarett's Exhibit H.) It was not until this deposition of Dr. Durhan that Jarett claims to have learned that Soldano performed the wet reading because Dr. Durhan's name was on the report (Jarett's Exhibit I, pages 21, 24.). Soldano's involvement in this regard was confirmed by Dee in his January 7, 2008 deposition. (Jarett's Exhibit G, page 18.) Although Soldano attempts to hold Jarett to having "discovered `a breach of duty by the defendant' no later than February 3, 2005," Soldano does not cite to any evidence that indicates Jarett was aware of Soldano's involvement in the wet read of the lumbar spine CT scan prior to January 2, 2008. Rather, Soldano only cites to Jarett's knowledge of Dr. Curran's involvement in the reading process. As such, Jarett has demonstrated a genuine issue of material fact exists as to when she learned of Soldano's involvement.
The situation in Jackson, supra, 113 Conn.App. 784-90, is analogous to the present matter in that although Jarett was not incapacitated for months under heavy medication, she similarly was unable to obtain documentation related to her claimed injury, where she did not have access to the hospital CT scan records for who actually performed the wet read. Jarett also was unable to discover her claimed actionable harm from what was not communicated from the radiology group to the emergency room until later depositions due to a lack of documentation.
In Taylor v. Winsted Memorial Hospital, 262 Conn. 797, 799, 817 A.2d 619 (2003), the Supreme Court examined the defendant's claim that § 52-584 imposed on the plaintiff a duty to investigate a potential claim of medical malpractice. The court held that "[a] plaintiff's claim of medical malpractice will accrue once he or she discovers, or in the exercise of reasonable care should have discovered, that he or she suffered an actionable harm. The plain language of the statute does not, therefore, impose any specific affirmative duty on the plaintiff to investigate a potential claim of malpractice. Rather, the sole inquiry, in this context, is whether, in light of all relevant circumstances, the plaintiff exercised reasonable care in the discovery of his or her injury . . . [W]e do not think that the legislature intended that the statute implicitly impose any affirmative duty on the plaintiff to investigate a potential claim of medical malpractice." Id., 805-07. The Taylor court thus found that "because the determination of reasonable care is a question of fact, it was up to the jury to determine whether the plaintiff exercised reasonable care in the discovery of his injury." Id., 810.
Likewise, as stated by the Appellate Court in Jackson v. Tohan, supra, 113 Conn.App. 787, "the determination of when a plaintiff in the exercise of reasonable care should have discovered actionable harm is ordinarily a question reserved for the trier of fact." Viewing the evidence, as this court must, in the light most favorable to the non-moving party, genuine issues of material fact exist as to when Jarett knew or should have known that more than one reading of her lumbar CT scan was performed, when Jarett knew or should have known that there was a discrepancy between the two CT scan readings and when Jarett knew or should have known that Soldano conducted the wet reading of her lumbar CT scan. Jarett's knowledge of these occurrences is essential to the determination of when she did or should have discovered actionable harm against Midstate, Dee and Soldano.
Although the defendants argue that the statute of limitations has expired here because Jarett "was aware of her alleged injury on February 3, 2005, at the latest," the defendants do not overcome Jarett's submitted evidence that she did not, at that time, know the causation of her injury in relation to the identity of the tortfeasors. As such, the case of Muszynski v. Terranova, Superior Court, judicial district of Hartford, Docket No. CV 07 5008687 (May 29, 2009, Aurigemma, J.), cited by Midstate and Dee in support of their motion, is distinguishable, where the plaintiff in that case was never unaware of the identity of the alleged tortfeasor. "It is not just to require a claimant to forfeit a cause of action because of his failure to bring a timely lawsuit against an as yet undetermined tortfeasor. Real life injury claims should not be governed by fictitious legal constructs. We are not prepared to require an injured claimant to abide by a timetable that imputes to him the knowledge of a relationship which he did not know and had no reason to know. The plaintiff is entitled to his day in court for a factual determination of what he should have known and when he should have known it." Tarnowsky v. Socci, 75 Conn.App. 560, 569-70, 816 A.2d 728 (2003), aff'd, 271 Conn. 284, 856 A.2d 408 (2004). Accordingly, the defendants' respective motions for summary judgment are denied.
III CONCLUSION
For the foregoing reasons, Midstate and Dee's motion for summary judgment #169 and Soldano's motion for summary judgment #175 are both denied.