Opinion
CV136037872
04-06-2016
Terasia Provost-Daar et al. v. Merz Aesthestics, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
Robin L. Wilson, J.
FACTS
On April 16, 2013, the plaintiffs, Terasia Provost-Daar (Terasia) and Bradley Daar (Bradley), commenced this informed consent action against the defendants Zachary Klett, an ophthalmologist and oculoplastic surgeon, and Klett Oculoplastic Surgery, P.C. (Klett Oculoplastic), by service of process. The operative pleading, a fifth amended complaint, was filed on July 6, 2015, alleging causes of action against the defendants for negligence on the basis of lack of informed consent (count two), and loss of consortium (count three).
The other defendants in this action, Merz Aesthetics, Inc., Merz Pharmaceuticals, LLC, and Merz Inc., referred to collectively throughout this memorandum as Merz, are not involved in the motion for summary judgment presently before the court. Accordingly, Dr. Klett and Klett Oculoplastic are referred to throughout this memorandum as the defendants.
Count one alleges a products liability claim against Merz.
In support of their claims, the plaintiffs allege the following facts. On January 17, 2011, Terasia visited the defendants to obtain an initial consultation regarding procedures that provide for skin rejuvenation and the elimination of facial wrinkles. Dr. Klett recommended injecting Radiesse, a derma filler gel, into Terasia's face because it would immediately fill in skin wrinkles and the lost volume in her face. Dr. Klett did not describe the contents of Radiesse or provide any warnings about the risks associated with it. Dr. Klett offered to provide Terasia with an injection of Radiesse, and Terasia, relying on his representations regarding the safety and effectiveness of Radiesse, consented. Dr. Klett proceeded to inject a quantity of Radiesse into Terasia's face. Immediately after receiving the injection, Terasia began experiencing discomfort, including pain, redness, and swelling in her face. Terasia's symptoms worsened in the weeks following the injection, necessitating multiple hospital visits. On February 4, 2011, Terasia was treated at Rockville General Hospital, where she remained admitted for five days. Shortly after Terasia's release, she visited Dr. Klett, who prescribed her various medications, but her symptoms soon relapsed. On February 16, 2011, Terasia was treated at Yale New Haven Hospital, where, following a CT scan, doctors observed Radiesse gel deposited throughout her face and " believed that bacteria [within the gel] had grown into a biofilm commonly associated with infectious growth on implants placed in the human body." The doctors " advised that . . . the only way to get rid of [the biofilm] and improve her health was to surgically remove" the Radiesse. Terasia underwent a facial surgery to remove the Radiesse on May 13, 2011, during which the doctors were unable to extract all of the Radiesse. As a result of the Radiesse biofilm infection that remains inside her face, Terasia's symptoms have returned intermittently over the past three years and will likely require a lifetime of antibiotic treatment. The defendants owed a duty to Terasia to provide careful and prudent medical care and advice, and breached this duty by recommending an injection of Radiesse without advising Terasia that injections of Radiesse carry the risk of biofilm infections that require surgery to remove. As a result of this breach, Terasia suffered damages. As a further result of this breach, Bradley, Terasia's husband, suffered the loss of his wife's services, companionship, and marital relations.
On October 27, 2015, the defendants filed a motion for summary judgment as to counts two and three of the plaintiffs' fifth amended complaint, on the ground that there is no genuine issue of material fact that the plaintiffs' claims are barred by the two year statute of limitations set forth in General Statutes § 52-584. On November 12, 2015, the defendants filed a supporting memorandum of law accompanied by, inter alia, a copy of the return of service; a copy of the plaintiffs' responses to requests for interrogatories; certified copies of excerpts from Terasia's deposition transcripts; and copies of Terasia's medical records. The plaintiffs filed a memorandum of law in opposition to the defendants' motion on December 14, 2015, supported by a sworn affirmation from the plaintiffs' counsel and copies of Terasia's medical records. The defendants filed a reply memorandum on January 21, 2016. The court heard oral argument on the motion at short calendar on January 25, 2016. At short calendar, the defendants conceded that on December 28, 2012, the plaintiffs obtained a ninety-day extension of the statute of limitations pursuant to General Statutes § 52-190a(b).
General Statutes § 52-584 provides in relevant part: " No action to recover damages for injury to the person . . . 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 . . ."
The defendants originally filed their memorandum of law and accompanying exhibits under seal on October 27, 2015. Pursuant to an order by the court, Agati, J., the defendants unsealed and re-filed their supporting memorandum and most of the accompanying exhibits on November 12, 2015. Terasia's medical records remain under seal pursuant to court order dated January 29, 2016.
Terasia's medical records were filed under seal.
Statutes § 52-190a(b) provides that " [u]pon petition to the clerk of the court where the civil action will be filed to recover damages resulting from personal injury or wrongful death, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods."
DISCUSSION
" [S]ummary 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.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " 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." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
The defendants argue that they are entitled to judgment as a matter of law on counts two and three of the plaintiffs' fifth amended complaint because those claims are barred by the two year statute of limitations set forth in § 52-584. Their argument is twofold. First, they contend that although the plaintiffs obtained a ninety-day extension of the statute of limitations under § 52-190a(b), which provides for an automatic extension of the limitation period in order to allow a plaintiff to conduct the " reasonable inquiry" required by § 52-190a(a), the plaintiffs are not entitled to rely on that extension to defeat a statute of limitations defense because § 52-190a applies only to causes of action for medical malpractice, whereas the plaintiffs' claims are grounded in lack of informed consent. Accordingly, the defendants assert, the plaintiffs cannot use § 52-190a (b) to extend the limitation period. Second, the defendants further maintain that the plaintiffs' claims are time barred because Terasia's medical records show that she was notified of an actionable claim against the defendants as early as February 4, 2011, but no later than March 25, 2011, which is more than two years before the plaintiffs commenced this action on April 16, 2013.
General Statutes § 52-190a(a) provides in relevant part: " No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . . in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint . . . shall contain a certificate of the attorney or party filing the action . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . . To show the existence of such good faith, the claimant . . . shall obtain a written and signed opinion of a similar health care provider . . ."
In their opposition, the plaintiffs argue that their claims are timely under § 52-584, both because they commenced this action within the ninety-day extension of the statute of limitations in accordance with § 52-190a(b), and because there are genuine issues of material fact with respect to the issue of when Terasia was first notified of an actionable harm. In response to the defendants' contention that § 52-190a(b) cannot be used to extend the statute of limitations for lack of informed consent claims, the plaintiffs maintain 'that a plaintiff who obtains a ninety-day extension in order to conduct a reasonable inquiry into whether a viable medical practice claim exists may rely on that extension regardless of whether the cause of action ultimately filed contains a medical malpractice claim. Thus, in the plaintiffs' view, it would be improper for the court to retroactively revoke their ninety-day extension simply because their reasonable inquiry disclosed only a cause of action for lack of informed consent.
The plaintiffs also argue that Terasia's lack of informed consent claim amounts to a claim of medical malpractice and, thus, falls within the purview of § 52-190a. This argument is squarely foreclosed by Shortell v. Cavanagh, 300 Conn. 383, 15 A.3d 1042 (2011), in which our Supreme Court held that " § 52-190a does not apply to a claim of lack of informed consent because . . . a claim of lack of informed consent is not a medical negligence claim ." (Citation omitted; emphasis added.) Id., 385. The plaintiffs' attempts to parse and distinguish this clear holding in Shortell are unavailing.
It is necessary to begin by resolving the question of whether the plaintiffs are entitled to rely on the ninety-day extension of the statute of limitations previously granted under § 52-190a(b). Section 52-190a(a) provides in relevant part that " [n]o civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death . . . in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action . . . has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant . . . To show the existence of such good faith, the claimant . . . shall obtain a written and signed opinion of a similar health care provider . . ." Section 52-190a(b) provides in relevant part that " [u]pon petition to the clerk of the court where the civil action will be filed to recover damages resulting from personal injury or wrongful death, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section."
" [Section] 52-190a generally is not viewed as a remedial statute because it was enacted for the benefit of health care providers, not injured plaintiffs." Barrett v. Montesano, 269 Conn. 787, 796, 849 A.2d 839 (2004). " The purpose of [§ 52-190a] is to inhibit a plaintiff from bringing an inadequately investigated cause of action, whether in tort or in contract, claiming negligence by a health care provider." Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 15, 698 A.2d 795 (1997). This purpose " is what necessitates the investigation prior to the filing of an action to determine whether there are grounds for a good faith belief that there has been negligence in the care and treatment of the claimant. That additional burden to conduct a reasonable inquiry necessitates the additional ninety days in which to do so, which is essential to ameliorate the harsh consequences of the occurrence rule . . ." (Internal quotation marks omitted.) Barrett v. Montesano, supra, 796. " Section 52-190a requires a certificate of good faith that the health care provider had been negligent in the care and treatment of the plaintiff. The legislature recognized the additional time often required to obtain such a certificate and, therefore, provided the automatic ninety-day extension of the statute of limitations." Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services; Inc., supra, 15-16.
The defendants correctly note that " § 52-190a does not apply to a claim of lack of informed consent because . . . a claim of lack of informed consent is not a medical negligence claim." (Citation omitted.) Shortell v. Cavanagh, 300 Conn. 383, 385, 15 A.3d 1042 (2011). It does not follow, however, that where a ninety-day extension of the statute of limitations has already been granted pursuant to § 52-190a(b), a plaintiff may not avail himself of that extension where his ultimate cause of action does not fall within the purview of § 52-190a. The court in Pafka v. Gibson, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X03-CV-05-5008249-S (July 17, 2008, Langenbach, J.T.R.) (46 Conn. L. Rptr. 9), squarely rejected the argument that " if § 52-190a(a) does not apply to the plaintiff's informed consent claim, then neither does the ninety-day extension of the statute of limitations for medical negligence claims in § 52-190a(b)." Id., 9. The court reasoned: " The purpose of § 52-190a(b) providing for a ninety-day extension, by its very words, is to allow a reasonable inquiry into whether there has been medical negligence. The ninety-day extension is automatically granted prior to the filing of any action with the court based upon a factual scenario that potentially may result in a claim of medical negligence. To foreclose a plaintiff who makes such an inquiry during the ninety-day period from filing a claim based upon lack of informed consent rather than medical negligence after conducting the inquiry would contradict the whole purpose of that subsection providing for the extension. The defendants have cited no authority that indicates that a court may retroactively revoke an automatic extension of the statute of limitations when the action that is ultimately filed within the ninety-day extension period does not contain a medical negligence claim. To interpret the extension provision to require a plaintiff to file an action based upon any theory other than medical negligence within two years and then allow a plaintiff an extra ninety days only to file a medical negligence claim not only negates the purpose of providing the extension but potentially results in multiple, piecemeal filings of actions based upon the same set of factual circumstances. The defendants are not entitled to summary judgment on the ground that the plaintiff's claim is barred by the statute of limitations, as her claim, regardless of its nature, was filed within [the] ninety-day extension period provided in [§ ]52-190a(b)." Id., 10, ; see also Samoska v. Urology Specialists, P.C., Superior Court, judicial district of Waterbury, Docket No. CV-12-6016670-S (November 17, 2015, Roraback, J.) (relying on Pafka to hold that " the ninety-day extension of the statute of limitations applies in this case even if the causes of action ultimately filed were only for lack of informed consent and corresponding lack of consortium [rather than medical malpractice]").
The reasoning set forth in Pafka is persuasive. First, it accords with the plain text of § 52-190a(b), which provides in relevant part that " an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section ." (Emphasis added.) Nothing in the language of the statute suggests that a plaintiff's entitlement to the ninety-day extension depends upon whether that reasonable inquiry ultimately leads to a medical negligence claim. Rather, as the court in Pafka observed, an extension under § 52-190a(b) is appropriate " based upon a factual scenario that potentially may result in a claim of medical negligence." (Emphasis added.) Pafka v. Gibson, supra, 46 Conn. L. Rptr. 10, at *6; cf. Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., supra, 242 Conn. 4-5 (noting that " § 52-190a(b) . . . permit[s] the reasonable inquiry necessary to obtain the foundation for th[e] good faith certificate" [emphasis added]). Furthermore, Pafta is in keeping with the settled principle that " the law favors rational and sensible statutory construction . . . When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results." (Citation omitted; internal quotation marks omitted.) Gabrielle v. Hospital of St. Raphael, 33 Conn.App. 378, 386, 635 A.2d 1232, cert. denied, 228 Conn. 928, 640 A.2d 115 (1994). Under the defendants' interpretation of § 52-190a(b), a plaintiff would be entitled to an extension at the onset of his investigation--when a medical negligence claim remained a genuine possibility--only to be retroactively stripped of that extension if his investigation proved unfruitful and failed to disclose a viable malpractice claim. This approach would produce bizarre and unjust results, and is therefore rejected.
The defendants criticize the court's reasoning in Pafka that a contrary ruling would encourage piecemeal litigation, arguing that such concerns are outweighed by the interests of finality secured through rigid enforcement of statutes of limitations. This argument is unpersuasive. First, this argument does not justify a complete renouncement of Pafka because it challenges only one of the several factors that bore on the Pafka court's analysis. Moreover, concerns over piecemeal litigation are at the heart of another established exception to the statute of limitations--the continuing course of conduct doctrine. That doctrine applies when " [t]he injuries about which the plaintiff is complaining . . . 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 . . . 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." (Emphasis added; internal quotation marks omitted.) Watts v. Chittenden, 301 Conn. 575, 588, 22 A.3d 1214 (2011). Accordingly, the court in Pafka appropriately considered the general preference against piecemeal litigation as a factor in its analysis.
The defendants' reliance on our Supreme Court's decision in Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., supra, 242 Conn. 1, is misplaced. In that case, the plaintiffs brought negligence claims against a sexual assault crisis center after the two year statute of limitations expired, but nevertheless argued, on the basis of a ninety-day extension obtained under § 52-190a(b), that their action was not time barred. Id., 3-5. The court held that because the defendant was not a " health care provider" within the meaning of § 52-190a, " the plaintiffs cannot rely upon the extension of the statute of limitations provided by § 52-190a(b) to save their action, which was brought beyond the two year [statute of] limitation . . . from being time barred." (Footnote omitted.) Id., 3. Thus, the plaintiffs in Bruttomesso could not use the extension under § 52-190a(b) to save their action because the defendant was not among the class of defendants that fall under § 52-190a. In other words, the extension at issue in Bruttomesso was improperly granted because, regardless of whether the plaintiffs' investigation yielded a medical malpractice claim, § 52-190a could not apply. Here, by contrast, the defendants are medical providers for purposes of § 52-190a and, given that the plaintiffs' claims arise from injuries sustained by Terasia from a facial injection, a reasonable inquiry conducted by the plaintiffs " potentially may [have] result[ed] in a claim of medical negligence." Pafka v. Gibson, supra, 46 Conn. L. Rptr. 10, at *6. Accordingly, the ninety-day extension of the statute of limitations was properly granted and, consistent with both Bruttomesso and Pafka, the plaintiffs are entitled to rely on it.
The defendants state in their reply brief that they " are not asking the court to retroactively revoke the ninety-day extension, " but, rather, are contending that " the ninety-day extension was never applicable to [Terasia's] claim for [lack of] informed consent." Because the ninety-day extension was properly granted in order to allow Terasia to make a reasonable inquiry into whether there was negligence in her treatment, this argument lacks merit.
Finally, the defendants argued at short calendar that, if § 52-190a(b) applies to the plaintiffs' lack of informed consent claim, then every plaintiff who receives treatment from a healthcare provider would be entitled to an extension of the statute of limitations, even if no plausible medical malpractice claim existed. As the court observed in Pafka, however, an extension under § 52-190a (b) must be " based upon a factual scenario that potentially may result in a claim of medical negligence." Pafka v. Gibson, supra, 46 Conn. L. Rptr. 10, at *6. Thus, the standard set forth in Pafka is not without limitation. Here, given the facts of this case, it was plausible that the plaintiffs' reasonable inquiry would uncover a medical malpractice claim.
To the extent the defendants are suggesting that Pafka creates room for abuse by plaintiffs who seek to extend the statute of limitations without a good faith basis for doing so, our Supreme Court rejected a similar argument in Shortell v. Cavanagh, supra, 300 Conn. 383. The defendants in Shortell argued that if the court held that § 52-190a did not apply to lack of informed consent claims, " parties will bring questionable medical malpractice claims . . . masquerading as informed consent claims." (Internal quotation marks omitted.) Id., 391. The court noted that " attorneys are bound by the Rules of Professional Conduct to bring actions on the foundation of a good faith basis that such actions have merit. Rule 3.1 of the Rules of Professional Conduct provides in relevant part: 'A lawyer shall not bring . . . a proceeding . . . unless there is a basis in law and fact for doing so that is not frivolous . . .' The argument that attorneys will now bring medical malpractice actions masquerading as informed consent cases suggests a lack of ethical standard on the part of attorneys to which we do not subscribe." (Internal quotation marks omitted.) Id., 392. Any contention that plaintiffs will attempt in bad faith to extend the applicable limitation period is similarly based on a cynical appraisal of the ethical standards of attorneys. The court therefore rejects this reasoning.
In the present case, Terasia received the injection of Radiesse that caused her injuries on January 17, 2011. If the court accepts the defendants claim that Teresia was notified of an actionable harm as early as February 4, 2011, but no later than March 25, 2011, the two year limitation period began to run from as early as February 4, 2011, or as late as March 25, 2011. Taking into account the ninety-day extension, the plaintiffs had until May 4, 2013, or as late as June 25, 2013, to commence this action. The parties agree that the defendants were served with process on April 16, 20 13. Accordingly, the plaintiffs' claims are timely under § 52-584, and the defendants' motion for summary judgment is therefore denied.
Because the plaintiffs' claims are timely by virtue of the ninety-day extension, it is not necessary for the court to address the issue of when Terasia was put on notice of an actionable claim against the defendants.
CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is denied.