Opinion
UWYCV146025593S
10-13-2017
Corrine Miribilio v. Opticare Eye Health Centers, Inc.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE AND MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
Barbara Brazzel-Massaro, J.
I. INTRODUCTION
The defendant has filed two separate post-trial motions. It filed a motion for judgment notwithstanding the verdict dated April 3, 2017 and a motion to set aside the verdict also dated April 3, 2017. Each of the motions address the applicability of the theories of continuing course of treatment and the continuing course of conduct. The court will address each motion separately although they have similarities. The defendant contends that the court erred in failing to grant the motion for directed verdict arguing that the tolling doctrines of continuing course of conduct and continuing course of treatment did not apply to toll the statute of limitations. The plaintiff has filed memoranda in opposition dated April 28, 2017. The defendant filed a reply memoranda dated May 31, 2017 and the plaintiff filed a sur-reply dated June 5, 2017.
II. FACTUAL BACKGROUND
In 2005, the plaintiff, Corrine Mirabilio, became a client/patient of Opticare Eye Center, Inc. (" Opticare") for all of her eye exams and care. She considered the group to be her primary care eye doctor. From 2005 until 2013 she made appointments for eye exams by calling the office and scheduling either a regular examination or an urgent care appointment if she experienced an eye problem. In most instances she simply called the office number and scheduled an appointment. The defendant employed a number of doctors and would schedule her with whomever was available at the time. On her first visit on July 13, 2005, she was treated by Dr. Taylor. On this visit a patient form was filled out and the first exam was completed. Dr. Taylor included in this examination a measurement of disc to cup ratio and optos photographs of her retina. The photos showed the lining of the eye. This examination and the specific films and measurements were the first medical records to identify the condition of the plaintiff's eyes for the records kept by Opticare. After the appointment in 2005 Ms. Mirabilio would schedule an eye appointment at Opticare each year. Each visit thereafter included the current examination and testing as well as a review of her medical record file for each of the prior examinations by the doctor(s) at Opticare Eye Health Center. The records of each of the visits were available and provided to the doctor when he or she examined Ms. Mirabilio. During the years that followed Ms. Mirabilio was examined on February 8, 2007, February 13, 2008, May 27, 2009, August 4, 2009, and June 28, 2011. In June 2011, Ms. Mirabilio was diagnosed with an advanced stage of glaucoma and significant optic nerve damage. The plaintiff filed this action claiming that the defendant through its doctors failed to timely and properly diagnose the plaintiff as having the symptoms of glaucoma and examining her eyes each visit without addressing or recognizing the obvious signs of glaucoma.
As part of the defense in this action the defendant argued that the legal action is precluded because the complaint was filed beyond the statute of limitations. The plaintiff rebutted that the theories of continuing course of conduct and continuing treatment apply to permit this action beyond the statute of limitations.
The defendant also argued that the damages related to the chance or risk of loss cannot apply because the plaintiff failed to provide evidence or testimony of a statistical calculation or probability percentage which would apply to the future loss of vision.
After the presentation of the plaintiff's case, the defendants filed a motion for directed verdict. They argued that the plaintiff had failed to present testimony or evidence that would support the tolling of the statute under either the continuing course of conduct doctrine or the continuous treatment doctrine and thus the court should enter judgment for the defendants. The court denied the motion and allowed the action to be presented to the jury along with interrogatories that specifically addressed the statute of limitations issue and a charge as the two doctrines.
Counsel prepared specific interrogatories to be answered by the jury as part of their deliberation. These interrogatories included questions concerning liability and damages as well as the statute of limitations questions related to the doctrines of continuing course of conduct and continuing treatment. The parties also agreed to verdict forms for the plaintiff and the defendant which were submitted to the jury for deliberation and rendering a verdict.
III. DISCUSSION
A. MOTION TO SET ASIDE
1. STANDARD
General Statutes Sec. 52-228b and Practice Book Sec. 16-35 provide for motions to set aside the verdict, for a new trial and for additur to remedy an erroneous jury verdict. The standard of review governing such motions is well-settled. " The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion is against the law or the evidence . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that in the absence of clear abuse, we shall not disturb." (Citation omitted, internal quotation marks omitted.) Edmands v. CUNO, Inc., 277 Conn. 425, 452, 892 A.2d 938 (2006).
On a motion to set aside the verdict, " [t]he evidence is viewed in a light most favorable to the prevailing party and to sustaining the verdict . . . and indulge every reasonable presumption in favor of its correctness . . . [The court] must determine whether the jury reasonably could have concluded, on the basis of the evidence and reasonable inferences drawn from that evidence, that the verdict . . . was improper." (Internal quotation marks omitted.) McDermott v. Calvary Baptist Church, 68 Conn.App. 284, 293-94, 791 A.2d 602 (2002). A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to law or unsupported by the evidence. A verdict will be set aside and judgment directed only if this court can determine that the jury could not reasonably and legally have reached their conclusion." Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 610, 662 A.2d 753 (1995). " A jury verdict should not be disturbed unless it is against [the weight of the] evidence or its manifest injustice is so plain as to justify the belief that the jury or some of its members were influenced by ignorance, prejudice, corruption, or impartiality. [T]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable." (Citations omitted.) Kalleher v. Orr, 183 Conn. 125, 126-27, 438 A.2d 843, (1981).
" A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion." (Internal quotation marks omitted.) Id., 294.
The defendant contends in its motion to set aside that the jury charges with respect to continuing course of treatment and chance of loss were improper.
The standard of review for a challenge to the propriety of a jury instruction is well established. " [J]ury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge . . . A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict. The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law . . . [I]nstructions to the jury need not be in the precise language of a request . . . Moreover, [j]ury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury." Matthiessen v. Vanech, 266 Conn. 822, 831-32, 836 A.2d 394 (2003).
2. CONTINUING COURSE OF TREATMENT
The defendant asserts in its motion to set aside the verdict (#206) that the jury charge as to the continuing course of treatment doctrine resulted in harmful error because the charge was inadequate and incomplete. Specifically, the defendant asserts that the jury charge should have included the language offered by the defendant as follows: " If the evidence shows that each of the plaintiff's visits to Opticare constituted a discrete, individual treatment which ceased when the involved optometrist undertook an eye examination, you must find that there was no continuing treatment." The defendant supports its assertion that its proposed language is necessary on the basis of the statement in Grey v. Stamford Health Systems, Inc., 282 Conn. 745, 757, 924 A.2d 831 (2007) that " [c]ourts applying the continuous treatment doctrine also are required under the second prong of our newly articulated test to make the sometimes difficult determination as to whether the services provided by a medical practitioner constituted continuous treatment, to which the doctrine may apply, or instead, constituted separate and isolated contacts." Essentially, the defendant contends that the jury charge was an incorrect statement of law because, in addition to the elements set forth in Grey, the jury should have been given a specific articulation as to separate and isolated contacts. The plaintiff, on the other hand, contends in its objection (#209), first, that the jury charge was a correct statement of the law because it was (1) taken directly from the articulation of the three-part test set forth in Grey, and (2) the defendant's requested language is taken from a mere expansion of the second part of the test in Grey, making the language proposed by the defendant unnecessary. Second, the plaintiff contends that the court's exclusion of the proposed language was proper because the facts indicate that the plaintiff's visits to Opticare were not discrete or isolated and, as a result, there was no harmful error. In order to prove that there was a continuing course of treatment the plaintiff must demonstrate that: 1) the plaintiff 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. Cefaratti v. Aranow, 321 Conn. 637, 643, 138 A.3d 837 (2016).
In the present case, the jury charge includes language identical to that of our Supreme Court. The issue in this case concerns only the second element of the three-part test, which has been articulated by the jury charge as requiring a determination of whether " 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." Unlike the language used in the jury charge, the language proposed by the defendant was not taken from the language of the test as set forth in Grey; rather, it appears later in the decision as part of a discussion regarding the analysis of the second element. The defendant's rationale is that, because the Grey decision explained that the court is required to determine whether treatment by a medical practitioner is continuance of particular treatment or if such treatment constitutes separate and isolated contacts, and as such there must be an approximation of this language in the jury instruction. The crux of the defendant's argument, then is that the jury instructions are not enough without the court's additional commentary. On this point, the defendant more specifically asserts that because the jury was both advised as to the distinction between the terms " continuous treatment" and " separate and isolated contacts, " the charge without the specific language requested should be considered incomplete. This court must determine whether the defendant's proposed expansion of the second element of the test was necessary for the jury charge to be considered " correct in law, adapted to the issues and sufficient for the guidance of the jury." Matthiessen v. Vanech, supra, 266 Conn. 831-32.
The jury charge which was given by this court correctly followed the law. The law as to the applicability of the continuous course of treatment doctrine consists of three well established elements, each of which have been concisely articulated by our Supreme Court in Grey . A finding of these elements is fact bound. Blanchette v. Barrett, 229 Conn. 256, 640 A.2d 74 (1994). There can be no doubt that this three-part test contains no language as to separate and isolated contacts. Additionally, numerous Supreme Court cases have invoked the elements of the continuous treatment doctrine while omitting any mention of the language from Grey concerning separate and isolated contacts. See e.g. Cefaratti v. Aranow, 321 Conn. 637, 646-47, 138 A.3d 837 (2016) (using the three-part test to determine whether the statute of limitations was tolled as to a medical malpractice claim against a doctor who left a sponge in a patient's body after performing gastric bypass surgery, but not considering whether the terms " separate and isolated contacts" were necessary for the analysis;) Martinelli v. Fusi, 290 Conn. 347, 365-66, 963 A.2d 640 (2009) using the three-part test to determine whether the statute of limitations was tolled as to a medical malpractice claim against a physician who knew but failed to advise a patient that follow up treatment was required, but not considering whether the terms " separate and isolated contacts" were necessary for the analysis; Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 947 A.2d 291 (2008) (using the three-part test to determine whether the statute of limitations was tolled as to a medical malpractice claim against an ophthalmologist for failing to advise the patient as to records that showed a detection of two meningiomas, but not considering whether the terms " separate and isolated contacts" were necessary for the analysis). Clearly, our appellate court cases following Grey and analyzing facts concerning various claims of medical malpractice have not found the terms " separate and isolated contacts" to be necessary for the analysis of the second element. Further, the language as articulated by the second element of the test expressly indicates that the jury is to make a determination as to whether Opticare " provided ongoing treatment or monitoring" of the plaintiff's medical condition. The defendant's assertion that the converse of what is being requested must also be articulated, i.e., that the jury also be charged with determining whether the plaintiff's visits to Opticare were discrete, does not appear necessary based on subsequent appellate court decisions or given the language already offered to the jury. Thus, the court does not find that the jury charge was incorrect in law and thus denies the request to set aside on this argument.
The court in Grey, several paragraphs after establishing the new test, elaborated on the analysis of the second prong, taking language from the Supreme Court case Zielinski v. Kotsoris, 279 Conn. 312, 328, 901 A.2d 1207, which adds further detail to the second prong of the court's new test, is required for the jury charge to constitute sufficient guidance to the jury.
In light of the fact-based nature of the Grey test our Supreme Courts have analyzed the second prong of the test using an assortment of language. In Cefaratti v. Aranow, supra, 321 Conn. 650, a case in which a plaintiff sued a defendant-surgeon for leaving a sponge in her body after performing gastric bypass surgery, the court held, with respect to the second prong of the test, that " [s]o 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."
It is also noted that the jury charge was properly adapted to the issues in this case. Analysis of the elements of the continuous course of treatment doctrine is " conspicuously fact-bound." Grey v. Stamford Health Systems, Inc., supra, 282 Conn. 754-55. In the present case, the plaintiff visited Opticare over the course of eight years and saw four different optometrists who worked specifically in the office and were the optometrists responsible for her eye care and examinations as assigned by the business. However, each optometrist had available to him or her the history and evaluations from prior exams as part of the evaluation. The facts concerning these visits as testified to by the various optometrist who oversaw the visit and the procedures of Opticare with respect to the continuity of the care are fairly detailed in the testimony and exhibits, giving the jury substantial material to consider in determining whether the treatment provided was what they determined to be continuous or discrete. As part of the argument of plaintiff in regard to the acknowledgement of the continuity of care she noted specific testimony. In determining whether a jury charge is proper, the overarching requirement is that the charge provides sufficient guidance to the jury in reaching a correct verdict. Matthiessen v. Vanech, supra, 266 Conn. 832. In looking to the substance of the jury charge in light of the facts of this case the jury was given a fair degree of latitude to determine whether the defendant's treatment of the plaintiff was continuous or not, and the jury charge does not misguide the jury with respect to the facts. However, considering the request to charge of the defendant which the court did not include, the language is not neutral but tends to lead the jury to specifically analyze from the perspective of discrete visits. Therefore, the charge requested by the defendant was not neutral under the law but was an attempt to have the jury interpret the facts and law in a particular manner to favor the defendant. Given the facts in this case and the controlling law, the jury charge was correct and sufficient to guide the jury to a fair and reasonable conclusion based on their findings of fact.
" We have multiple providers assess a normal optic nerve. We have one provider, Dr. Stanley, who did multiple assessments before he identified a change, assessment at each visit and evaluate optic nerve changes. That enabled the subsequent doctors to go back and evaluate what the prior ones had seen. So you not only have an assessment by an optometrist at the time, but with the optos images, the subsequent optometrists evaluated the earlier assessments and looked for the fact that is was stable and there was no evidence of abnormality." Pl.['s] Mem. Opp.
In addition as part of the jury verdict forms the court included for the jury interrogatories that were provided by agreement of the parties. One of the interrogatories involved questions as to the " continuous treatment doctrine." There were four interrogatories addressing this issue including the question, " Has the plaintiff proved by a fair preponderance of the evidence that the defendant (through the optometrist employees) provided ongoing monitoring for her identified medical condition or that she reasonably could have anticipated the defendant would do so?" The jury responded " yes" to this interrogatory. The jury also was provided an interrogatory which requested information as to the deviation from the standard of care for each visit which they submitted responses of " yes" for treatment over a number of years with varied optometrists.
3. CHANCE OF LOSS
The second ground for the defendant's motion to set aside the verdict is that the jury charge regarding the plaintiff's increased risk of future blindness was improper due to a lack of sufficient evidence. Specifically, the defendant asserts that our Supreme Court, in Petriello v. Kalman, 215 Conn. 377, 395-97, 576 A.2d 474 (1990), held that, to support a jury charge regarding an increased risk of future loss, the evidence must indicate the percentage probability that such loss will occur. On this point the defendant avers that " [t]here was a complete dearth of expert opinion as to a quantification that the plaintiff had increased her chances of becoming blind because she did not start treatment until her glaucoma was severe." Def['s] Motion to Set Aside Verdict. The plaintiff offers two arguments in response. First, the plaintiff contends that the defendant's argument is irrelevant because the verdict, which shows the total amount of damages only as " non-economic damages, " does not indicate whether the jury considered the increased risk of future harm at all. Second, the plaintiff contends that Petriello does not stand for the proposition that the plaintiff must adduce evidence to indicate a probability percentage as to chance of future harm. Instead, the plaintiff argues, the Petriello decision stands for the proposition that a plaintiff is entitled to recover for any risk of future harm that is more likely than not derived from the present injury, regardless of whether the risk of future harm is accompanied by a probability percentage.
" The court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding . . . The court should, however, submit to the jury all issues as outlined by the pleadings and as reasonably supported by the evidence." (Citations omitted; internal quotation marks omitted.) Goodmaster v. Houser, 225 Conn. 637, 648, 625 A.2d 1366 (1993). Additionally, our Supreme Court has established that general statistical evidence, consisting inter alia, of actuarial tables and medical statistics, provide " an adequate basis for measuring damages for the risk to which the victim has been exposed because of a wrongful act." Petriello v. Kalman, supra, 215 Conn. 396-97 (sufficient evidence to support damages for risk of future harm).
The first testimony about the impact of not diagnosing the condition early on came from Dr. Timothea Ryan who testified that absent treatment of the optic nerve there is likely to be further damage even at normal pressures. She testified that it is important to slow down the glaucoma to prevent damage to the optic nerve and thus prevent further loss of vision. She discussed the variations in the cupping which in 2014 demonstrated a .9 which is 90 percent and stated that if the defendant began treatment it would be at most .7 which would permit Ms. Mirabilio to take part in activities such as driving, watching the news, reading and day to day functioning would be less debilitating. If treated in 2005 or 2007 she would be about the same in 2014 and continue without being visually debilitated. She testified that even if diagnosed in 2008 her vision loss would be limited to the spots in the left eye. Dr. Ryan testified that the plaintiff could have been slowed or halted and the treatment lowers the chance of progression by two thirds from 35 to 12 percent by lowering the intraocular pressure. She further testified that since began treating her in 2015 her visual field loss has remained stable. This testimony about impacts and effects was followed by Dr. Dahl's expert testimony.
In this case the plaintiff notes that " Dr. Dahl testified in regard to a study conducted by the American Journal of Ophthalmology, which found that 12 percent of patients who were treated to lower their untreated intraocular pressures by 30 percent still had progression (as compared to 35 percent of untreated patients whose conditions progressed) . . . He explained that people who were treated have a 75 percent chance of doing better than those [who] are not treated." Pl.['s] Mem. Opp'n. Additional expert testimony established a link between the plaintiff's injury and increased risk of becoming blind in the future Pl.['s] Mem. Opp'n Ex. L. Under Petriello, evidence consisting of medical statistics may be used as a basis for measuring risk of future harm. Dr. Dahl's use of the statistics from the American Journal of Opthalmology, which Dr. Dahl stated was " seminal, " indicates two relevant probability percentages that could have been used to calculate the plaintiff's risk of future harm. First, for untreated individuals, there is an increased risk of visual impairment of 35 percent. Second, even for individuals who have been treated to lower their intraocular pressures by 30 percent, there remains a 12 percent risk of future visual impairment.
" So 140 eyes of 140 patients were used. 61 were in the treatment group, 79 were untreated controls. The results were in the control eyes, that's the eyes that were untreated, 35 percent had further glaucomatous optic disc progression or visual field loss. So 35 percent go worse, that is the control eyes, the untreated eyes." Pl.['s] Mem. Opp. Ex. J.
" On the other hand, in the treated eyes treated medically or surgically to bring their pressure down, 12--only 12 percent had progression. So if you compare the two groups you say that the conclusion of the study was that a 30 percent reduction in intraocular pressure in patients with normal intensive glaucoma reduces the risk of optic nerve damage in treated patients to one-third that of untreated patients." PI.['s] Mem. Opp. Ex. J.
Viewing the argument of the defendant in this regard, it appears that they espouse a view far outside of Petriello because they contend that without specific identified or established percentages of loss, the claim is not supportable. They ignore the testimony that was presented by both Dr. Dahl and Dr. Ryan about not only studies but the actual impact that time has had on the plaintiff. Dr. Ryan testified that with treatment the visual loss would be greatly reduced giving her the opportunity to continue to drive, dance, read and engage in normal activities. The defendant's argument would if accepted, eliminate any application of this doctrine in a case that has supportable evidence of chance of loss, unless as stated earlier the plaintiff calculated specific percentages of her future visual loss. The testimony provided, although not as specific as the defendant erroneously elevates to a mandatory element, is reasonable for the jury to view and consider as a damages claim for the chance of loss. Given the testimony that was submitted to the jury, there was sufficient evidence to reasonably support a finding that the plaintiff incurred an increased risk of becoming blind in the future.
It should be noted that the plaintiff incorrectly asserts that the Petriello decision stands for the proposition that any indication that a plaintiff has incurred an increased risk of future harm may be compensated, so long as the plaintiff shows that it is more likely than not that such risk exists. The decision is somewhat more nuanced. In Petriello, the Supreme Court held that " [t]he probability percentage for the occurrence of a particular harm, the risk of which has been created by the tortfeasor, can be applied to the damages that would be justified if that harm should be realized." The court, in coming to this decision, did acknowledge that " [d]amages for future consequences of an injury can never be forecast with certainty, " but also indicated that (1) the extent of future harm should be proven, and (2) that evidence of harm may be derived from studies, actuarial tables, and similar sources. Id., 396-97. Therefore, characterizing the holding of Petriello to allow for damages by merely alleging an increased risk of future harm, with no evidence to support the extent of such risk, is an unsupportable position. Further, the plaintiff's citation to Drew v. William W. Backus Hospital, 77 Conn.App. 645, 666-67, 825 A.2d 810, cert. denied, 265 Conn. 909, 831 A.2d 249 (2003), does not support its characterization of Petriello, as the proposition cited from Drew was only that the law before Petriello was abolished.
The plaintiff also argues that the defendant's position does not support its motion to set aside the verdict because there is no way to know to what extent, if at all, the verdict was based on the jury charge of increased risk of blindness. Our Appellate Court in Deesso v. Litzie, 172 Conn.App. 787, 797, 163 A.3d 55 (2017), has stated " that where there is a general verdict and no breakdown of the components of the verdict, it would be error to set it aside . . . In such a situation, neither the trial court nor this court ha[s] any reasonable basis on which to break down the verdict and it is impossible . . . to determine what factors the jury considered in making its award . . . Accordingly, not know[ing] how or why the jury arrived at its determination of damages . . . [w]e cannot speculate as to how the jury reached its figure." Id., 797. The Deesso case involved a finding on general economic damages but there was no breakdown such as the interrogatories that would require the jury to review each bill or claim. The jury charge in the instant action discussed a multitude of damages which fit the realm of non-economic damages as claimed by the plaintiff. The very testimony of the plaintiff described a number of activities that she could no longer perform such as driving at night, shopping in a store, reading and even dancing with her husband. She testified about changes in her eyes over the time of treatment at Opticare. She specifically testified about a discussion of a change to her eyes when she placed a new television on the wall. She also described episodes where she believed her vision affected her inability to fully see traffic while driving. These occurrences contributed to her ongoing concern about her eyes. She testified about the additional impacts on her sight at the present time and her fears as to deterioration of her eyesight. Much of her testimony related to activities now as well as in the future. Her testimony was compelling. The plaintiff's verdict form did not contain a breakdown of the non-economic damages. If the jury was to award any non-economic damages it was left to award them in a lump sum. The defendant did not ask to separate past non-economic damages or to specifically award for chance of loss or the inability to carry on activities because of the loss of vision that the plaintiff testified created difficulties for her now. Therefore, as in Deesso the court in the present action does not know how or why the jury arrived at the determination of damages of 2.2 million dollars. The defendant speculates that the damages are related to the chance of loss. Therefore, even if this court were to concede that the jury instruction as to the plaintiff's increased risk of future harm was given in error, the court would be required to assume or speculate that at least part of the non-economic damages award was based on that jury charge. As indicated by our Appellate Court in Deesso, the court may not grant a motion to set aside the verdict if granting the motion requires speculation as to the basis of the jury's verdict, and if the components of the verdict are unknown as in this case. Thus, the proposition in Deesso is directly on point in the present case. Therefore, the motion to set aside the verdict based upon the argument as to the chance of loss is denied.
B. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
The defendant filed a motion for judgment notwithstanding the verdict to which the plaintiff has filed an objection. " There is considerable overlap between a motion to set aside the verdict and for the entry of a judgment notwithstanding the verdict . . ." Rossman v. Morasco, Superior Court Complex Litigation docket at Stamford, Docket No. X08 CV-010183603 (December 19, 2006, Adams, J.). The standards governing a motion for judgment notwithstanding the verdict are the same as those governing a motion for directed verdict, because a motion for judgment notwithstanding the verdict is not a new motion but the renewal of a motion for a directed verdict. Gagne v. Vaccaro, 255 Conn. 390, 400, 766 A.2d 416 (2001). [O]ne of the distinct differences is not so much the legal standards to be applied by the trial court, but the ultimate remedy imposed if one or more of the motions is successful. A motion to set aside seeks remedy of a new trial, a motion for a judgment notwithstanding the verdict seeks entry of a final judgment. Id. The filing of a motion for directed verdict pursuant to Practice Book § 16-37, is a prerequisite for a judgment notwithstanding the verdict. Preston v. Wellspeak, 62 Conn.App. 77, 80-81, 767 A.2d 1259 (2001).
In considering the defendant's motion for judgment notwithstanding the verdict, the court is guided by appellate authority. " Directed verdicts are disfavored because [l]itigants have a constitutional right to have factual issues resolved by the jury . . . Landmark Investment Group, LLC. v Calco Construction & Development Co., 318 Conn. 847, 862, 124 A.3d 847 (2015). The court may " render judgment notwithstanding the verdict, . . . only if [it] find[s] that the jury could not reasonably and legally have reached their conclusion . . . The question is not whether [the court] would have arrived at the same verdict, but whether when viewed in the light most favorable to sustaining the verdict, the evidence supports the jury's determination . . . A trial court may only grant a motion for judgment notwithstanding the verdict if the jury reasonably and legally could not have reached any other conclusion . . ." and must deny such a motion where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion . . . (Citation omitted; Emphasis in original; internal quotation marks omitted.) Id., 862-63.
The defendant, Opticare, filed a motion for directed verdict arguing that the plaintiff had filed the action beyond the applicable statute of limitations and that the exceptions of continuous course of conduct and continuous treatment doctrines could not save the action from being time barred. This court denied the motion for directed verdict. The court permitted the jury to address the defenses raised by the defendant and the exceptions which were filed by the plaintiff. As part of the deliberations for the jury the parties submitted interrogatories that specifically addressed the doctrines of continuous course of treatment, continuing course of conduct and general interrogatories related to the claims as to each date of treatment.
It should be noted that finding at least one of the exceptions applies to this action would support the position that the action was not time barred and thus the motion for judgment notwithstanding the verdict should be denied. Even though this is the analysis the court will address this motion as to both doctrines.
1. CONTINUING COURSE OF CONDUCT
The defendant contends that the court improperly allowed the jury to decide the issue of the continuing course of conduct and that the court in doing so erred.
The court has already decided above that the continuing course of treatment exception was before the jury with a proper charge and has found that the evidence supported the charge. The jury found in its interrogatory response that there was a continuing course of treatment support the tolling provision and thus the motion for judgment notwithstanding the verdict should be denied for this reason however, the court addresses the claim as to the doctrine of the course of conduct for clarity as raised by the defendant in this motion.
" [I]n order [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 . . . 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 . . . Therefore, a precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff . . . A second requirement for the operation of the continuing course of conduct doctrine is that there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto . . . The doctrine of continuing course of conduct as used to toll a statute of limitations is better suited to claims where the situation keeps evolving after the act complained of is complete . . ." (Citations omitted; internal quotation marks omitted.) Vaccaro v. Shell Beach Condominiums, Inc., 169 Conn.App. 21, 148 A.3d 1123 (2016).
The continuing course of conduct focuses on the defendant's duty to the plaintiff arising from his knowledge of the plaintiff's condition. Grey v. Stamford Health System, Inc., 282 Conn. 745, 755, 924 A.2d 831 (2007). The defendant argues that Grey requires that the court find that there was no continuing course of conduct because the care provided was from four separate doctors on eight separate occasions. The defendant refers to the language in Grey which states that separate and isolated contacts with different physicians and in particular in Grey a consulting radiologist will not give rise to the continuing course of conduct relationship for purposes of tolling the statute. However, the facts of the instant action do not follow the Grey action in which the radiologists was separate and distinct and reporting back to the physicians. Here, the plaintiff introduced testimony and evidence that she selected this defendant for her eye care to provide competent, consistent and complete eye care. The fact that the group had a number of different optometrists each of whom would utilize the identical records of the ongoing eye care provided to Ms. Mirabilio for each appointment connects these professionals. This arrangement is no different than any medical group that may have different physicians who based upon the schedule will provide care to the patient of the practice. Even if not always the same treater the patient knows that each doctor will have the medical history and prior treatment to provide continuity. It was clear from the testimony of all of the defendants and the plaintiff that for each visit the optometrist reviewed the records kept by the defendant for Ms. Mirabilio. This is buttressed with the actions of Dr. Ireland who included a " problem list" in the records of Ms. Mirabilio the large cup to disc ratio. This notation was to give background and an emphasis to watch. Why take such action if each visit is independent? It was reasonable for the jury to consider this testimony along with the testimony of the various treaters and arrive at a decision as to the applicability of the tolling provision. Dr. Ryan very clearly testified that the " cupping really means glaucoma until proven otherwise." She buttressed this with the fact that the plaintiff had in 2008 a visual symptom when she had blurring spots out of her left eye in watching TV. Dr. Ryan noted that the level of visual loss noted in the exam in November 2011 by Dr. Dua was consistent with a loss that could not be the result of a year or two from glaucoma.
This physical symptom was relayed to the optometrist in 2008. However, even this symptom with the earlier notation was ignored and no optometrist followed up with any testing.
The defendant contends that none of the three criteria can be met as to: 1) whether the defendant 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. The plaintiff contends that the continuing course of duty applied and the she met the conditions to apply the doctrine in the instant action.
Here the central underlying ground for the plaintiff's arguments is that she was owed a duty by the defendant. " Duty is a legal conclusion about relationships between individuals, made after the fact . . . The nature of the duty and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." (Internal quotations marks omitted.) Lawrence v. O & G Indus., 319 Conn. 641, 649, 126 A.3d 569 (2015).
The court in Vaccaro followed a rational explanation as to the purpose and application of the continuing course of conduct doctrine. " [T]he continuing 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." (Internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286, 312, 94 A.3d 553 (2014). The Appellate Court has found that the continuing course of conduct doctrine " is better suited to claims where the situation keeps evolving after the act complained of is complete . . . rather than one where the situation cannot change . . ." Sanborn v. Greenwald, 39 Conn.App. 289, 297-98, 664 A.2d 803 (1965). The defendant contends that because the plaintiff was treated by four different doctors over the period of eight years she cannot satisfy the continuing course. In particular, she relates this claim to Grey where the court determined that even though the plaintiff sought ongoing treatment for her condition after receiving a false diagnostic service from the radiologist there was no continuing course because the relationship with the radiologist was as a consultant to her physician. First of all, the factual scenario in this case does not follow Grey . The plaintiff in the instant matter chose the defendant group as her primary eye doctors. She was not seeking consultation but was relying upon the group to provide accurate, complete and competent eye exam and analysis. Here, the plaintiff contends that from the first exam in 2005, she manifested a known sign of glaucoma, that is the enlarged disc to cup ratio. Very early in her treatment this was noted by Dr. Ireland as test result that is placed on the problem list to monitor. This action and the continuing observation by the various optometrists who were all part of Opticare established the first element of the continuing course of conduct as an initial wrong. The testimony of Dr. Ryan clearly required further testing and action on behalf of the optometrists because of this finding. Dr. Ryan offered testimony about the percentages of glaucoma patients diagnosed with this physical attribute. But not only Dr. Ireland but each optometrist from Opticare in the following exams did nothing to address the unusual findings. The lack of any testing outside of the normal eye sight exam continued with each optometrist although the plaintiff exhibited signs which required further testing according to Dr. Ryan. She also testified as did the experts that if the optometrist had competently completed her exams including a dilation of her eyes to see the condition of the optic nerve or the layers within her eyes they would have seen the obvious changes which would lead to a visual field test or other indicators that she was experiencing the beginning of glaucoma. However, the testimony clearing indicated from each of the optometrists that they had the patient files and the notations but did not follow up. Thus the testimony and evidence clearly demonstrate that the continuous course of conduct doctrine does apply to toll the statue in the instant action.
In Watts v. Chittenden, 301 Conn. 575, 22 A.3d 1214, (2011) the court noted as to the use of the doctrine that, " a violation is called continuing signifying that a plaintiff can reach back to its beginning even if that beginning lies outside the statutory limitations period, when it would be unreasonable to require or even permit him to sue separately over every incident of the defendant's unlawful conduct. The injuries about which the plaintiff is complaining in [these] case[s] are the consequence of a numerous and continuous series of events . . . When a single event gives rise to continuing injuries . . . the plaintiff can bring a single suit based on an estimation of his total injuries, and that mode of proceeding is much to be preferred to piecemeal litigation despite the possible loss in accuracy. But in [cases in which the continuing course of conduct doctrine is applicable, each incident increases the plaintiff's injury]. Not only would it be unreasonable to require him, as a condition of preserving his right to have [the full limitations period] to sue . . . to bring separate suits [during the limitations period] after each [incident giving rise to the claim]; but it would impose an unreasonable burden on the courts to entertain an indefinite number of suits and apportion damages among them." (Internal quotation marks omitted.) Fradianni v. Protective Life Ins. Co., 145 Conn.App. 90, 98-99, 73 A.3d 896, cert. denied, 310 Conn. 934, 79 A.3d 888 (2013). Rather, the doctrine applies to cases " that involv[e] a continuing course of conduct which over a period of years cause[s] injury. Since usually no single incident in a continuous chain of tortious activity can fairly or realistically be identified as the cause of significant harm it seems proper to regard the cumulative effect of the conduct as actionable." (Internal quotation marks omitted.) Watts v. Chittenden, supra, 592, quoting Twyman v. Twyman, 790 S.W.2d 819, 821 (Tex.App. 1990), rev'd on other grounds, 855 S.W.2d 619, 620 (Tex. 1993). In the instant case the initial findings in 2007 alerted Opticare that the plaintiff had a problem. As each year passed and each exam ignored the initial findings the plaintiff reported new symptoms such as the inability to see the television clearly (i.e. spots), or difficulty driving and seeing cars peripherally and then poor night vision, or difficulty adjusting when entering a big box type of store. Even with these changes and the initial test results no optometrist from 2007 to 2011 followed up with the simplest of tests including OCT or a visual field test.
The defendant argues that the focus of the duty to the plaintiff in a claim of continuous course of conduct arises from the knowledge of the plaintiff's condition and thus in this action the defendant did not know that the plaintiff was a glaucoma suspect and therefore had no duty to monitor. This argument is contrary to the evidence in this case and the testimony of each optometrist who viewed her records with a problem of large cup to disc ratio which was the problem to monitor. The testimony of Dr. Ireland, although not recalled by Ms. Mirabilio, recognized the need to talk to the patient about her findings and the need to watch (that is monitor) her cup to disc ratio. The defendant's argument is circular in that they contend there is no basis to conclude that the optometrists had a wrong or incomplete diagnosis because there was nothing to show that she was a glaucoma suspect. However, this is precisely the difficulty because if the defendant had followed up or monitored the large cup to disc ratio or performed a proper dilation with the eye exam the plaintiff argues the glaucoma diagnosis would be confirmed instead of a monitor on the problem list. The defendant argues that there was no reason to order further testing but again this is contested by Dr. Dahl and Dr. Ryan as experts for the plaintiff. The defendant in the memorandum in support of this motion refers to the testimony of Dr. Taylor, Dr. Ireland, Dr. Agranov, and Dr. Stanley who recognize the irregularity but not one of them brings this to the attention of the plaintiff and not one takes any further steps except to watch. This watching as the further treatment rather than further diagnostic testing for this obvious irregularity and symptom of glaucoma creates the continuing course of conduct. Based upon the evidence of the various records of treatment for the plaintiff it is inconceivable that the defendant can argue that there is no continuous course of conduct in the present case.
2. CONTINUOUS TREATMENT DOCTRINE
The continuous treatment doctrine has been justified on a number of public policy grounds. First, the courts have recognized that " [i]t may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury during a course of treatment." Blanchette v. Barrett, id., 277. " In such cases it is appropriate to allow the course of treatment to terminate before allowing the repose section of the statute of limitations to run, rather than having the parties speculate and quarrel over the date on which the act or omission occurred that caused the injury during a course of treatment." Id. Second, the court recognized that public policy favors " maintain[ing] 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." (Internal quotation marks omitted.) Id., 276 quoting Connell v. Colwell, 214 Conn. 242, 253, 571 A.2d 116 (1990); see also Nykorchuck v. Henriques, 78 N.Y.2d 255, 258, 577 N.E.2d 1026, 573 N.Y.S.2d 434 (1991). In a claim of continuous treatment, the focus is on the plaintiff's reasonable expectation that the treatment for an existing condition will be ongoing. The testimony and evidence in this action provided to the jury, emphasized that the plaintiff established a relationship with Opticare to perform her annual eye exams and to address, if necessary, other eye concerns that would cause the plaintiff to seek a medical opinion. The plaintiff is in a different position from a patient who has received a report that the exam is normal or a negative diagnosis when in fact the medical provider either misread or improperly diagnosed. Here beginning in 2005 the defendant through the multiple doctors at Opticare did not misread (except Dr. Agranov who reduced the cup to disc ratio to .5) the testing. Each noted the cup to disc ratio and other concerns along the way but none of the optometrists took the step of following through with any tests to further determine as to what caused the enlargement. All of the testimony includes a recognition of the significance of the large cup to disc ratio but specifically Dr. Ryan testified that, " [t]he abnormality in the optic nerve and you know, cupping, is like, cupping of the optic nerve, nothing else does that. It is glaucoma." (March 17, 2017 Testimony of Dr. Ryan.) The testimony of Dr. Ryan was supported by the text of the American Academy of Ophthalmology, Basic and Clinical Science Course which indicates that generalized enlargement of the cup may be the earliest change detected in glaucoma. (Plaintiff's Exhibit 41 ID.)
The defendant attempts to link the treatment of Ms. Mirabilio to separate doctors with no relation to the visits. However, Dr. Ryan indicated in her testimony that the diagnosis of glaucoma usually requires more than one visit because she would want to obtain another pressure of the patient to see if the pressure is increasing on a different day or different time of day. She testified that she would also do an OCT which measures the shape of the optic nerve and the nerve tissue layer. She would also schedule a visual field test. However, the crux of her testimony is that the physical signs displayed by Ms. Mirabilio in 2005 were consistent with glaucoma. On the first visit with the plaintiff in May 2014, Dr. Ryan reviewed the records of Opticare which included all her treatment from 2005 to 2011 with each of the optometrists. Dr. Ryan indicated that from her review of the records from Opticare she could not decipher if she was treated by one optometrist or more than one except that the final treatment was with Dr. Dua, an ophthalmologist who was a glaucoma specialist. During each of the years beginning in 2005, the optometrists at Opticare were privy to and accepted the history of Ms. Mirabilio as to the enlarged cup to disc ratio but never performed the next relevant tests for the optic nerve or the nerve lining which would have been able to diagnose the slow progression of glaucoma. In the present case, Dr. Taylor was the first treater and did nothing to further test the eyes even to give a base line for watching her condition. This was not inconsistent with the testimony of Dr. Ryan that the first exam may not offer sufficient findings for a diagnosis of glaucoma but will aide in the determination of changes in the eye that can be diagnosed. However, thereafter the jury found that the plaintiff demonstrated she had an identified medical condition that required ongoing treatment and although each of the optometrists treated the plaintiff none followed through with the proper monitoring and thus treatment for the medical condition. The jury found in the responses to interrogatories that based upon the testimony of each of the optometrists as well as experts in the field that there was a continuous course of treatment by the defendant. The responses followed the law as set forth in Grey v. Stamford Health System, 282 Conn. 745, 755, 924 A.2d 831 (2007). Thus the motion for judgment notwithstanding the verdict is denied in that the statute of limitations is tolled by
This is also consistent with the interrogatory responses of the jury that the defendant did not deviate from the accepted standard of care on July 13, 2005 which was the first visit but found deviations thereafter.
IV. CONCLUSION
Based upon the above the motion to set aside is denied and the motion for judgment notwithstanding the verdict is denied.