Opinion
UWYCV126015570S
11-17-2015
Jeffery Samoska et al. v. Urology Specialists, P.C. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#S 106 & 168)
Andrew W. Roraback, Judge.
I
BACKGROUND
The above-captioned, consolidated cases all arise from a perforated aorta and duodenum that the plaintiff Jeffrey Samoska allegedly suffered during an attempted prostate cancer surgery performed by the defendants Steven B. Siegal MD and Michael J. Flanagan MD on February 14, 2010. At all times relevant to these motions, the plaintiffs, Jeffrey Samoska and Sharon Samoska, were represented by Attorney Terence Hawkins. Attorney Hawkins permanently resigned from the bar of the State of Connecticut on June 29, 2015 and waived his privilege of applying for readmission. As a result, the plaintiffs now represent themselves.
It is noteworthy that the plaintiffs have become self-represented not by choice but rather by default. Through no fault of their own, the attorney they chose is facing criminal charges alleging defalcation of funds belonging to his clients Attorney Hawkins relinquished his license to practice law. " [I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. The modern trend is to construe pleadings broadly and realistically, rather than narrowly and technically. The courts adhere to this rule to ensure that pro se litigants receive a full and fair opportunity to be heard, regardless of their 'lack of legal education and experience' . . ." (Citation omitted; internal quotation marks omitted.) Oliphant v. Commissioner of Correction, 274 Conn 563, 569, 877 A.2d 761 (2005).
A withdrawal has been filed in the matter of Jeffrey J. Samoska v. Hartford Hospital, Docket No. UWY-CV-12-6016437-S. The other two above-captioned matters against the defendants, Urology Specialists, PC, Michael J. Flanagan, M.D., and Steven B. Siegal M.D., remain pending. The 2012 case, Samoska v. Urology Specialists, PC, Docket No. UWY-CV-126015570-S, has six active counts in which Jeffrey Samoska alleges lack of informed consent against each of the defendants and Sharon Samoska makes corresponding loss of consortium claims. The 2013 case, Samoska v. Urology Specialists, PC, Docket No. UWY-CV-136018479-S, is an accidental failure of suit action that seeks to revive the medical malpractice claims against each defendant and corresponding loss of consortium claims that the court dismissed in the 2012 case for failure to comply with General Statutes § 52-190a.
Although Hartford Hospital was also named as a defendant in the 2012 action, the plaintiff has withdrawn all counts against Hartford Hospital in that action.
General Statutes § 52-190a provides " (a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, 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, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. The claimant or the claimant's attorney, and any apportionment complainant or apportionment complainant's attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate. The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney or the apportionment complainant's attorney submitted the certificate. (b) Upon 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. (c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action."
By way of a single motion dated September 30, 2014, the defendants have moved for summary judgment in the 2012 case and 2013 case. The plaintiffs have objected. Both sides have submitted memoranda in support of their positions and the plaintiff Sharon Samoska has also submitted an affidavit in support of her position. Counsel for the defendant extended courtesy to the plaintiffs over a period of many months by not claiming these motions while the plaintiffs engaged in an ultimately fruitless endeavor to secure substitute counsel. Argument on the motions was finally heard on July 27, 2015. This decision ensues.
II
DISCUSSION
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
" Summary judgment may be granted where the claim is barred by the statute of limitations . . . Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute . . ." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). " [I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period . . . When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." Id., 321.
A
The 2012 Action
The defendants have moved for summary judgment on all remaining informed consent and derivative loss of consortium counts in the action that the plaintiff commenced in 2012, Docket No. UWY-CV-12-6015570-S, on the ground that there is no genuine issue of material fact that they are barred by the statute of limitation. In the 2012 case, the plaintiffs allege in their complaint that March 11, 2010 was the last date that Jeffrey Samoska was seen by the defendants. The plaintiffs' original attorney in this matter, Gregory Klein, knew he would be unable to secure the opinion of medical negligence required by General Statutes § 52-190a (a) before March 11, 2012. Therefore, on February 27, 2012, he moved for a ninety-day extension to institute this action as provided for in § 52-190a(b). In that motion, Attorney Klein represented that, without that extension, the statute of limitations " otherwise may run on March 11, 2012." That motion was granted on February 27, 2012, with an order stating that " The Statute of Limitations is extended per Connecticut General Statute 52-190a." That statute allows for " an automatic ninety day extension of the statute of limitations . . ." General Statutes § 52-190a(b).
On June 1, 2012, Attorney Hawkins entered his appearance on behalf of the plaintiffs when he signed a writ, summons, and complaint against the defendants. That complaint alleged lack of informed consent and loss of consortium against the defendants but did not contain medical negligence counts because an opinion of medical negligence had not yet been procured. A written opinion of medical negligence from a similar health care provider dated June 17, 2012 was subsequently prepared. This was before the action was served on any of the defendants. On July 26, 2012, the plaintiffs filed an amended complaint, which added new counts alleging medical negligence against the defendants and to which was appended a good faith certificate and opinion of medical negligence as required by § 52-190a(a).
The defendants Siegal and Flanagan were served on June 22 and the defendant Urology Specialists P.C. was served on June 26. The action was filed on July 6 and had a return date of July 24.
The defendants then moved to dismiss the medical negligence counts on the ground that the plaintiffs failed to timely comply with the requirements of § 52-190a. In a decision dated February 4, 2013, Judge Shapiro granted the motion, finding that the opinion of medical negligence " did not exist until after the expiration of the extension obtained by the plaintiffs" and that dismissal was, therefore, a mandatory remedy .
Although the time for reopening the judgment of dismissal has long passed, the plaintiffs, in opposing the pending motion for summary judgment, offer an affidavit averring new facts, which the record reveals were never raised in advance of Judge Shapiro dismissing the medical negligence counts. Specifically, the plaintiffs now maintain that, although it is true as alleged in the complaint that the last time Jeffery Samoska saw the defendants was March 11, 2012, the defendants nevertheless continued to treat him until at least March 29, 2012, when Dr. Siegal phoned the plaintiff to discuss the results of a PSA test, which the defendants had ordered and which Jeffrey Samoska underwent on March 26, 2012. This new information is of consequence because an action is deemed to commence when service is made. Up until the plaintiffs filed their opposition to the motions now pending, all of the parties, their counsel and the court had proceeded on the assumption that the defendants' treatment of Jeffrey Samoska ended the last time he had an office visit, which no one disputes was on March 11, 2010. If that date was the end of the defendants' treatment of him, it would result in the two-year statute of limitations, including the ninety-day extension, running on June 9, 2012. This date is obviously before June 17, 2012, the date when plaintiff's counsel obtained the written opinion of medical negligence and well before the dates process was served on the defendants. If, however, the defendants treated Jeffery Samoska until March 29, 2010, the expiration of the ninety-day extension would be calculated from March 29, 2012. This means that the June 17, 2012 opinion of medical negligence would have existed both before the action was commenced with service on June 22 and June 26 and before June 27, 2012, the date to which the statute of limitations including the ninety-day extension would have ran.
The defendants advance the idea that the law of the case doctrine obligates this court in both the 2012 and 2013 cases to adopt Judge Shapiro's findings as to when the statute of limitations ran. " The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Citations omitted.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). In this case, the new factual allegations of continuing treatment counsel against a wholesale adoption of Judge Shapiro's prior conclusions in this case. This court concurs with the results reached by Judge Shapiro in light of the facts presented to him at that time.
" [U]nder the law of our state, an action is commenced not when the writ is returned but when it is served upon the defendant." (Footnote omitted, internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004).
" [T]o establish a continuous course of treatment for purposes of tolling the statute of limitations in medical malpractice actions, the plaintiff is required to prove: (1) that he or she had an identified medical condition that required ongoing treatment or monitoring; (2) that the defendant provided ongoing treatment or monitoring of that medical condition after the allegedly negligent conduct, or that the defendant 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. As we previously have recognized, the determination that any of these elements exists is conspicuously fact-bound." (Footnotes omitted; internal quotation marks omitted.) Grey v. Stamford Health System, Inc., 282 Conn. 745, 754-55, 924 A.2d 831 (2007).
The plaintiffs have raised an issue of fact regarding when Jeffrey stopped treating with the defendants. That issue is material because it goes to the viability of both the medical negligence action sought to be revived in the 2013 accidental failure of suit action and to the viability of the still surviving informed consent and lack of consortium counts of the 2012 case.
With respect to the plaintiffs' informed consent counts in their 2012 case, the defendants also argue that the plaintiffs cannot avail themselves of the ninety-day extension provided for in § 52-190a(b) because an action grounded in a claim of lack of informed consent is not a medical malpractice action for the purposes of § 52-190a. Shortell v. Cavanagh, 300 Conn. 383, 392, 15 A.3d 1042, 1047 (2011) (" § 52-190a does not apply to actions for lack of informed consent"). The case law does not support this argument. In Pafka v. Gibson, Superior Court, judicial district of Hartford, Docket No. CV-05-5008249-S (July 17, 2008, Langenbach, J.) (46 Conn. L. Rptr. 9, 10) the court held that " [j]ust because a plaintiff petitions for an extension to make a reasonable inquiry into a claim of medical malpractice does not mean that the action that is ultimately filed must be considered a claim of medical malpractice." The court in Pafka reasoned that " [t]he purpose of the subsection 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 . . . 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." Id. Furthermore, the text of § 52-190a(b) states that the ninety-day extension applies " where the civil action will be filed to recover damages resulting from personal injury or wrongful death, " meaning it is not limited to cases where a medical malpractice action is filed. The court granted the requested extension of the statute of limitations in this case, stating in its order that " [t]he statute of limitations is extended per Connecticut General Statute 52-190a." Therefore, 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.
The defendants also assert that there is no genuine issue of material fact that, even if the statute of limitations may be extended by § 52-190a(b) for a lack of informed consent claim, the fact that this action was not commenced until June 22, 2012 renders the action untimely even with the ninety-day extension. This argument presupposes that the statute of limitations would have run from March 9, 2010, the date that Jeffrey Samoska was last seen by the defendants. As discussed above, however, the plaintiffs have offered evidence that the defendants continually treated Jeffrey Samoska until March 29, 2012. If true, this would give the plaintiffs until June 27, 2012 to initiate this action. As such, a genuine issue of material fact exists as to whether the plaintiffs' remaining informed consent causes of action in the 2012 action are barred by the statute of limitations. The defendants' motion for summary judgment must, therefore, be denied with respect to the 2012 action.
For the purpose of the statute of limitations, an informed consent claim is a medical malpractice claim, Lambert v. Stovell, 205 Conn. 1, 5, 529 A.2d 710 (1987), and the statute of limitations may be tolled by the continuing course of conduct doctrine. Langsam v. Terraciano, 22 App.Div.3d 414, 415, 802 N.Y.S.2d 449 (2005).
B
The 2013 Action
In the 2013 action, Docket No. UWY-CV-136018479-S, the plaintiffs have attempted to revive their medical negligence and associated loss of consortium counts from the 2012 action by way of the accidental failure of suit statute, General Statutes § 52-592. The defendants have moved for summary judgment with respect to the 2013 action on the ground that there is no genuine issue of material fact that the plaintiffs cannot avail themselves of the accidental failure of suit statute because " the failure to engage in a pre-suit consultation with a similar health care provider prior to initiating the original action was not the result of mistake, inadvertence, or excusable neglect" but " a calculated decision by plaintiff's counsel to file the action after the statute of limitations."
General Statutes § 52-592(a) provides: " (a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment." " [A] plaintiff may bring a subsequent medical malpractice action pursuant to the matter of form provision of § 52-592(a) only when the trial court finds as a matter of fact that the failure in the first action to provide an opinion letter that satisfies Section 52-190a(a) was the result of mistake, inadvertence or excusable neglect, rather than egregious conduct or gross negligence on the part of the plaintiff or his attorney." Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 56, 12 A.3d 885 (2011).
Judge Shapiro dismissed the medical negligence counts and derivative loss of consortium counts in the 2012 case because he found that the June 17, 2012 opinion of medical negligence letter did not even exist until after the date he concluded the extended statute of limitations had run. Judge Shapiro's opinion presupposed that the statute of limitations had begun to run on March 11, 2010, the date the plaintiffs alleged the defendants last saw Jeffrey Samoska in their office. No one then suggested to Judge Shapiro what is now alleged, namely that Jeffrey's treatment had continued beyond that date at least until March 29, 2010. As indicated above, this presents a genuine issue of material fact regarding whether the continuing course of treatment doctrine tolled the running of the original statute of limitations until March 29, 2012.
Given that there is a genuine issue of material fact as to whether the statute of limitations began to run on these negligence counts on March 11, 2010 or March 29, 2010, there is also a genuine issue of material fact as to whether the written opinion of medical negligence was in the possession of Attorney Hawkins prior to the end of the statute of limitations period. If treatment ended on March 29, 2010, the extended statute of limitations would have run until June 27, 2012. The opinion letter is dated June 17, 2012, and the affidavit submitted by Attorney Hawkins contesting the motion to dismiss the medical negligence counts in the 2012 action states that he " received a draft opinion sometime prior to June 17, 2012 and finalized the opinion shortly thereafter." Practice Book § § 10-59 and 10-60 do not allow a complaint to be amended before the return date. This may explain why Attorney Hawkins did not file his amended complaint until July 26, 2012, which was two days after the July 24 return date. That amended complaint did have affixed to it both the good faith certificate and the opinion of medical negligence required by § 52-190a(a).
Viewing the record in its entirety, and given the existence of a genuine issue of material fact as to when the statute of limitations began to run and whether the opinion letter existed prior to the end of the running of the statute of limitations, this court concludes that the criteria necessary for the granting of summary judgment in the 2013 case have not been met. Furthermore, the plaintiffs never filed a complaint that alleged medical malpractice for the purpose of § 52-190a without attaching the required good faith certificate and opinion of medical negligence. Attorney Hawkin's shortcomings in connection with complying with § 52-190a are, therefore, more fairly characterized as mistake, inadvertence or excusable neglect than as egregious conduct or gross negligence of a nature to bar resort to the accidental failure of suit statute. That statute is " remedial and is to be liberally interpreted." (Internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc., 114 Conn.App. 244, 250, 969 A.2d 210 (2009). " Its essential purpose is to ensure the plaintiff the right to a trial of his claim." (Internal quotation marks omitted.) Id. " The [saving] statute is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction." Isaac v. Mount Sinai Hospital, 210 Conn. 721, 733, 557 A.2d 116 (1989).
III
CONCLUSION
For all of the reasons set forth above, the defendants' motions for summary judgment are denied.