Cefaratti v. Aranow ( 2016 )

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LISA J. CEFARATTI v. JONATHAN S. ARANOW ET AL.
(SC 19444)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and
Vertefeuille, Js.
Argued January 21—officially released June 14, 2016
Ellen M. Costello, for the appellants (named defen-
dant et al.).
Kelly E. Reardon, with whom, on the brief, was
Robert I. Reardon, Jr., for the appellee (plaintiff).
Opinion
ROGERS, C. J. The issue that we must resolve in
this certified appeal is whether the plaintiff’s medical
malpractice action is barred by the statute of limitations
or, instead, the statute of limitations was tolled under
the continuing course of treatment doctrine. The plain-
tiff, Lisa J. Cefaratti, brought this action against the
defendants, Jonathan S. Aranow, Shoreline Surgical
Associates, P.C. (Shoreline), and Middlesex Hospital
(Middlesex), alleging that Aranow had left a surgical
sponge in the plaintiff’s abdominal cavity during gastric
bypass surgery. She further alleged that Middlesex was
both directly liable for its own negligence and vicari-
ously liable for Aranow’s negligence, and Shoreline was
vicariously liable for Aranow’s negligence.1 Thereafter,
Middlesex filed a motion for summary judgment claim-
ing, among other things, that the claims against it were
barred by the applicable statute of limitations, General
Statutes § 52-584.2 Aranow and Shoreline subsequently
filed a joint motion for summary judgment raising the
same claim. The trial court concluded that the direct
claims against Aranow and Middlesex were barred by
the statute of limitations and, therefore, the derivative
claims against Middlesex and Shoreline were also
barred. Accordingly, the trial court rendered judgment
for the defendants, and the plaintiff appealed to the
Appellate Court, which reversed the judgment of the
trial court on the ground that there was a genuine issue
of material fact as to whether the statute of limitations
had been tolled by the continuing course of treatment
doctrine.3 Cefaratti v. Aranow, 154 Conn. App. 1, 22,
105 A.3d 265 (2014). We then granted Aranow and
Shoreline’s petition for certification to appeal from that
ruling, limited to the following issue: ‘‘Did the Appellate
Court properly apply the ‘continuing course of treat-
ment’ doctrine in determining what constitutes an ‘iden-
tifiable medical condition’ under that doctrine?’’4
Cefaratti v. Aranow, 315 Conn. 919, 919–20, 107 A.3d
960 (2015). We answer that question in the affirmative
and, therefore, affirm the judgment of the Appellate
Court.
The record, which we view in the light most favorable
to the plaintiff for purposes of reviewing the trial court’s
rendering of summary judgment, reveals the following
facts and procedural history. On December 8, 2003,
after having diagnosed the plaintiff as being morbidly
obese, Aranow performed gastric bypass surgery on
the plaintiff at Middlesex. Thereafter, the plaintiff had
follow-up appointments with Aranow on January 14,
2004, May 11, 2004, October 22, 2004, May 10, 2005,
November 16, 2005, December 17, 2007 and March 20,
2009. The plaintiff testified at her deposition that, start-
ing approximately one year after her surgery, she began
to experience uncomfortable sensations in her abdo-
men. She described the sensations as follows: ‘‘When
[the sponge] was in there it was so large that I could
barely bend over without it getting caught on my ribs
and the pain was very, very intense. I felt like I was
carrying a child in my abdomen.’’ She further stated
that she felt that ‘‘something was pushing out . . . and
it felt like somebody was stabbing me . . . . [W]hen-
ever I had to have a bowel movement it felt like some-
body was twisting something inside of me . . . .’’ The
plaintiff testified that she described these sensations
exactly to Aranow at every appointment, except per-
haps the first two.5
On August 6, 2009, after being diagnosed with breast
cancer by another physician, the plaintiff underwent
a computerized tomography (CT) scan of her chest,
abdomen and pelvis. The CT scan revealed the presence
of foreign material in the plaintiff’s abdominal cavity.
On September 9, 2009, the plaintiff met with Aranow,
who informed her that the object in her abdominal
cavity was a surgical sponge. After the sponge was
surgically removed, she no longer had the sensations
of having something caught on her ribs and of carrying
a child.6
On August 18, 2010, the plaintiff brought a medical
malpractice action alleging that Aranow had negligently
failed to remove the surgical sponge from her abdomi-
nal cavity during the gastric bypass surgery, and that
Middlesex and Shoreline were both directly liable for
their own negligence and vicariously liable for Aranow’s
negligence. Thereafter, Middlesex filed a motion for
summary judgment claiming that, because the plaintiff
had not brought the action within the three year statute
of repose provided for in § 52-284,7 the action was
barred. The defendants filed a separate motion for sum-
mary judgment raising the same claim. The plaintiff
opposed the motions, claiming, among other things, that
the statute of limitations was tolled by the continuing
course of treatment doctrine.
The trial court observed in its memorandum of deci-
sion that, to establish the elements of the continuing
course of treatment doctrine, the plaintiff was required
to prove: ‘‘(1) that . . . she had an identified medical
condition that required ongoing treatment or monitor-
ing; (2) that the defendant provided ongoing treatment
or monitoring of that medical condition after the alleg-
edly 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 treat-
ment terminated.’’ (Footnotes omitted.) Grey v. Stam-
ford Health System, Inc., 282 Conn. 745, 754–55, 924
A.2d 831 (2007). The trial court concluded that the iden-
tified medical condition at issue in the present case
was the sponge in the plaintiff’s abdomen and, because
the plaintiff did not know about that condition, she
could not have sought treatment for it. Accordingly, it
concluded that the doctrine did not apply and the action
was, therefore, barred by the statute of limitations, enti-
tling the defendants to summary judgment.
The plaintiff appealed from the judgment to the
Appellate Court. The Appellate Court concluded that
the plaintiff’s morbid obesity was an identified medical
condition for purposes of the continuing course of treat-
ment doctrine and that there was a genuine issue of
material fact as to whether Aranow had provided ongo-
ing treatment for that condition. Cefaratti v. Aranow,
supra, 154 Conn. App. 21–22. Accordingly, it concluded
that there was a genuine issue of material fact as to
whether the continuing course of treatment doctrine
tolled the statute of limitations; id., 22; and reversed in
part the judgment of the trial court. Id., 45.
This certified appeal followed. The defendants con-
tend that the Appellate Court incorrectly determined
that the plaintiff’s morbid obesity was an identified
medical condition for purposes of the continuing course
of treatment doctrine. Rather, the defendants contend,
the plaintiff’s identified medical condition was either
the retained surgical sponge, for which the plaintiff
could not have sought treatment because she was
unaware of it, or the plaintiff’s morbid obesity, which
was not an identified medical condition for purposes
of the doctrine because it did not have any connection
to the injury of which she complained. The plaintiff
contends that she sought treatment both for her morbid
obesity and for postoperative complications, such as
her abdominal discomfort. Accordingly, she contends,
her abdominal discomfort was an identified medical
condition for purposes of the doctrine. In turn, the
defendants respond that this claim fails because the
plaintiff was required to and did not establish a connec-
tion between the medical condition for which she
sought treatment—her abdominal discomfort—and the
alleged negligence—leaving the sponge in the plaintiff’s
abdominal cavity. They further contend that, even if
there is evidence that the sponge caused the plaintiff’s
abdominal discomfort, the plaintiff cannot prevail
because she has not alleged or presented evidence that
Aranow’s continuing failure to diagnose the true cause
of her discomfort was negligent.
We conclude that, to establish that there are genuine
issues of material fact as to whether the continuing
course of treatment doctrine tolled the statute of limita-
tions, the plaintiff was required only to present evidence
that her abdominal discomfort was caused by the
sponge and that she sought continuing treatment for
her discomfort from Aranow. We further conclude that
the plaintiff has established that there is a genuine issue
of material fact as to whether the doctrine applies.
‘‘The standard of review of a trial court’s decision
granting summary judgment is well established. Prac-
tice Book § 17-49 provides that summary judgment shall
be rendered forthwith if the pleadings, affidavits and
any other proof submitted show that there is no genuine
issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. In deciding
a motion for summary judgment, the trial court must
view the evidence in the light most favorable to the
nonmoving party. . . . The party moving for summary
judgment has the burden of showing the absence of
any genuine issue of material fact and that the party
is, therefore, entitled to judgment as a matter of law.
. . . Our review of the trial court’s decision to grant
the defendant’s motion for summary judgment is ple-
nary. . . . On appeal, we must determine whether the
legal conclusions reached by the trial court are legally
and logically correct and whether they find support in
the facts set out in the memorandum of decision of the
trial court.’’ (Citation omitted; internal quotation marks
omitted.) Gold v. Greenwich Hospital Assn., 262 Conn.
248, 253, 811 A.2d 1266 (2002).
‘‘[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 dem-
onstrating 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 stat-
ute.’’ (Citation omitted.) Romprey v. Safeco Ins. Co. of
America, 310 Conn. 304, 321, 77 A.3d 726 (2013). Thus,
in the present case, because there is no dispute that
the plaintiff filed her complaint after the limitations
period set forth in § 52-584 had expired, the burden is
on the plaintiff to establish that there is a genuine issue
of material fact as to whether the statute of limitations
was tolled by the continuing course of treatment
doctrine.
We begin our analysis with a review of our case law
involving the continuing course of treatment doctrine.
‘‘As a general rule, [t]he [s]tatute of [l]imitations begins
to run when the breach of duty occurs.’’ (Internal quota-
tion marks omitted.) Grey v. Stamford Health System,
Inc., supra, 282 Conn. 751. ‘‘We have . . . recognized,
however, that the statute of limitations, in the proper
circumstances, may be tolled under the continuous
treatment . . . doctrine, thereby allowing a plaintiff to
commence his or her lawsuit at a later date.’’ (Internal
quotation marks omitted.) Id. Under that doctrine, ‘‘[s]o
long as the relation of physician and patient continues
as to the particular injury or malady which [the physi-
cian] 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.’’ (Internal quotation marks omit-
ted.) Id.
As we have indicated, to establish the elements of
the continuing course of treatment doctrine, a 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 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.’’ (Footnotes omitted.) Id.,
754–55. To constitute an ‘‘identified medical condition’’
for purposes of the doctrine, the medical condition for
which the plaintiff received ongoing treatment must be
connected to the injury of which the plaintiff complains.
See id., 754 n.6, citing Watkins v. Fromm, 108 Ohio App.
Div. 2d 233, 244, 488 N.Y.S.2d 768 (1985) (‘‘continuous
treatment doctrine applies only to treatment for the
same or related illnesses or injuries, continuing after
the alleged acts of malpractice, not mere continuity
of a general physician-patient relationship’’ [internal
quotation marks omitted]); Miccio v. Gerdis, 120 Ohio App.
Div. 3d 639, 640, 990 N.Y.S.2d 863 (2014) (doctrine
applies ‘‘where [the physician] treated the patient con-
tinuously over the relevant time period for symptoms
that are ultimately traced to [the underlying] condition
[of which the plaintiff complains]’’).
With these principles in mind, we turn to the evidence
in the present case. The plaintiff testified that, starting
approximately one year after the surgery, she developed
severe abdominal discomfort. She further testified that
she complained to Aranow of this discomfort at each
of the subsequent follow-up appointments. Finally, she
testified that, after the surgical sponge was removed,
a number of symptoms disappeared.8 On the basis of
this evidence, we conclude that there are genuine issues
of material fact as to: (1) whether the plaintiff’s abdomi-
nal discomfort was caused by the presence of the surgi-
cal sponge and, therefore, whether it was an ‘‘identified
medical condition’’ for purposes of the continuing
course of treatment doctrine; and (2) whether the plain-
tiff sought continuing treatment for that medical condi-
tion. Accordingly, we conclude that the Appellate Court
properly determined that there are genuine issues of
material fact as to whether the continuing course of
treatment doctrine tolled the statute of limitations.
The defendants contend, however, that the doctrine
does not apply because the plaintiff has not alleged
that Aranow’s treatment of her after the surgery was
negligent.9 Specifically, they contend that she has not
alleged that Aranow negligently failed to discover dur-
ing the follow-up appointments that a surgical sponge
had been left in her abdominal cavity during the surgery.
Thus, the defendants implicitly contend that we should
adopt the ‘‘single act’’ exception to the continuing
course of treatment doctrine, under which the doctrine
does not apply when the plaintiff’s injury was caused
by a single act of negligence rather than by a continuous
course of negligent treatment. See Pastchol v. St. Paul
Fire & Marine Ins. Co., 326 Ark. 140, 146, 929 S.W.2d
713 (1996) (‘‘the continuous treatment doctrine
becomes relevant when the medical negligence consists
of a series of negligent acts or, a continuing course
of improper treatment’’ [emphasis in original; internal
quotation marks omitted]); Langner v. Simpson, 533
N.W.2d 511, 522 (Iowa 1995) (‘‘[t]o prevail under the
continuum of negligent treatment doctrine, the plaintiff
must show [1] that there was a continuous and unbro-
ken course of negligent treatment, and [2] that the treat-
ment was so related as to constitute one continuing
wrong’’ [internal quotation marks omitted]); Swang v.
Hauser, 288 Minn. 306, 309, 180 N.W.2d 187 (1970) (doc-
trine does not apply when alleged tort was single act
and no continued course of treatment could cure or
relieve it).
We disagree. Our cases have consistently stated that
the policy underlying the continuous treatment doctrine
seeks to ‘‘[maintain] 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.) Grey v. Stamford Health System, Inc., supra,
282 Conn. 752; Blanchette v. Barrett, 229 Conn. 256,
276, 640 A.2d 74 (1994); Connell v. Colwell, 214 Conn.
242, 253, 571 A.2d 116 (1990) (same); see also Grey v.
Stamford Health System, Inc., supra, 752 (‘‘[t]he doc-
trine rests on the premise that it is in the patient’s
best interest that an ongoing course of treatment be
continued, rather than interrupted by a lawsuit because
the doctor not only is in a position to identify and
correct his or her malpractice, but is best placed to do
so’’ [internal quotation marks omitted]), quoting Nykor-
chuck v. Henriques, 78 N.Y.2d 255, 258, 577 N.E.2d
1026, 573 N.Y.S.2d 434 (1991); Grey v. Stamford Health
System, Inc., supra, 752 (policy underlying doctrine is
to avoid creating ‘‘a dilemma for the patient, who must
choose between silently accepting continued corrective
treatment from the offending physician, with the risk
that his claim will be time-barred or promptly instituting
an action, with the risk that the physician-patient rela-
tionship will be destroyed’’ [internal quotation marks
omitted]), quoting Rizk v. Cohen, 73 N.Y.2d 98, 104, 535
N.E.2d 282, 538 N.Y.S.2d 229 (1989). In addition, we have
repeatedly recognized 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.’’
(Internal quotation marks omitted.) Grey v. Stamford
Health System, Inc., supra, 751; Blanchette v. Barrett,
supra, 274 (same); see also Giambozi v. Peters, 127
Conn. 380, 385, 16 A.2d 833 (1940) (‘‘when . . . injuri-
ous consequences arise from course of treatment, the
statute [of limitations] does not begin to run until the
treatment is terminated’’), overruled in part on other
grounds by Foran v. Carangelo, 153 Conn. 356, 360,
216 A.2d 638 (1966). Thus, to require that the continuing
treatment itself must be negligent before the doctrine
can be applied would be fundamentally inconsistent
with one of the primary policies underlying the doctrine,
namely, to allow the patient to seek ongoing treatment
for a medical condition caused by a single act of negli-
gence.10 Accordingly, we decline to adopt this excep-
tion. See Nobles v. Memorial Hospital of Laramie
County, 301 P.3d 517, 527–29 (Wyo. 2013) (rejecting
single act exception to continuing course of treatment
doctrine because exception is ‘‘at odds with the basic
policies at the heart of the continuous treatment
rule’’).11
The defendants also contend that, even if evidence
of continuing negligence is not required, the continuing
course of treatment doctrine does not apply here
because ‘‘the plaintiff certainly could not have antici-
pated [that] the defendant would have treated her for
a retained foreign object of which no one was aware.’’
See Grey v. Stamford Health System, Inc., supra, 282
Conn. 755–56 (‘‘when the plaintiff had no knowledge
of a medical condition and, therefore, had no reason
to expect ongoing treatment for it from the defendant,
there is no reason to apply the doctrine’’). Thus, the
defendants contend that a plaintiff should be required to
prove that the medical condition for which continuing
treatment was sought was ‘‘identified’’ in the sense that
the plaintiff knew its true nature and cause. We dis-
agree. Rather, we conclude that the medical condition
must be ‘‘identified’’ in the sense that it was the specific
condition that either gave rise to or was caused by
the defendant’s negligence. See McDermott v. Torre, 56
N.Y.2d 399, 406, 437 N.E.2d 1108, 452 N.Y.S.2d 351
(1982) (‘‘Included within the scope of continuous treat-
ment is a timely return visit instigated by the patient
to complain about and seek treatment for a matter
related to the initial treatment. Thus, there will be con-
tinuing treatment when a patient, instructed that he or
she does not need further attention, soon returns to
the doctor because of continued pain in that area for
which medical attention was first sought.’’ [Internal
quotation marks omitted.]);12 Miccio v. Gerdis, supra,
120 Ohio App. Div. 3d 640 (‘‘a physician . . . cannot defeat
the application of the continuous treatment doctrine
merely because of a failure to make a correct diagnosis
as to the underlying condition, where [the physician]
treated the patient continuously over the relevant time
period for symptoms that are ultimately traced to that
condition’’); D. Peck, ‘‘The Continuous Treatment Doc-
trine: A Toll on the Statute of Limitations for Medical
Malpractice in New York,’’ 49 Alb. L. Rev. 64, 77 (1984)
(‘‘Although the [defendant] may be aware that its
actions caused the injury which necessitated the subse-
quent treatment, this knowledge is not a necessary ele-
ment of affirmative treatment. The essential factor is
that the subsequent treatment is related to the act or
omission which gave rise to the cause of action.’’ [Foot-
note omitted.]). This conclusion ‘‘is compelled by the
policy underlying the continuous treatment doctrine,
i.e., that a patient should not be required to interrupt
corrective medical treatment by a physician and under-
mine the trust in the physician-patient relationship in
order to ensure a timely claim . . . .’’ (Citation omit-
ted.) Couch v. Suffolk, 296 A.D. 2d 194, 197, 746
N.Y.S.2d 187 (2002). ‘‘Although it seems incongruous
that subsequent treatment can occur without affirma-
tive action by the physician since the term treatment
connotes the presence of action, in certain situations
treatment can occur by omission. This treatment by
omission arises when the patient returns to the treating
physician complaining of problems in the mistreated
area but the physician disregards the complaints. The
significant factor is that even though the physician may
not have provided literal treatment to the afflicted area,
the patient, by returning to the physician, has provided
him with an opportunity to correct his previous error.’’
(Footnote omitted; internal quotation marks omitted.)
D. Peck, supra, 79. Thus, in the present case, the plaintiff
was required only to show that there is a genuine issue
of material fact as to whether her symptoms of abdomi-
nal discomfort were connected to the retained surgical
sponge and that she sought treatment for those symp-
toms, not that she knew about and sought treatment
for the presence of the sponge.13
Accordingly, we conclude this court’s statement in
Grey v. Stamford Health System, Inc., supra, 282 Conn.
755–56, that ‘‘when the plaintiff had no knowledge of
a medical condition and, therefore, had no reason to
expect ongoing treatment for it from the defendant,
there is no reason to apply the doctrine’’ refers either
to the situation in which the plaintiff was suffering from
an asymptomatic medical condition and, therefore, had
no reason to seek treatment for it, or to the situation
in which the plaintiff sought treatment for certain symp-
toms, the defendant determined that the symptoms
required no further treatment and the plaintiff sought
no further treatment. It does not refer to the situation
in which a plaintiff continually sought treatment for
symptoms related to the act of negligence for which
the true cause was unknown.14
To the extent that the defendants contend that rou-
tine appointments can never constitute a continuing
course of treatment for purposes of the doctrine, we
again disagree. Rather, we conclude that routine post-
operative appointments for the purpose of tracking the
progress of the plaintiff’s condition and postoperative
complications, if any, constitute continuing treatment
for any identified medical condition that was caused
by the surgery. See Miller v. Rivard, 180 A.D. 2d
331, 339, 585 N.Y.S.2d 523 (1992) (routine postoperative
procedures are part of same course of treatment as
surgery); Callahan v. Rogers, 89 N.C. App. 250, 255,
365 S.E.2d 717 (1988) (it is irrelevant for purposes of
doctrine whether postoperative appointments were ini-
tiated by plaintiff or were scheduled office visits). Of
course, as with any application of the doctrine, the
plaintiff must present evidence in such cases that he
or she sought treatment for a specific medical condition
that was related to the injury of which he or she com-
plained. For example, in the present case, if the plaintiff
had failed to present any evidence that the presence of
the sponge in her abdominal cavity had caused symp-
toms for which she sought treatment at the follow-
up appointments, the mere fact that the defendants
provided ongoing monitoring of the condition that the
surgery was intended to cure—the plaintiff’s morbid
obesity—would not have been sufficient.
For the foregoing reasons, we conclude that the
Appellate Court properly determined that there are gen-
uine issues of material fact as to whether the continuing
course of treatment doctrine tolled the statute of limita-
tions. Accordingly, we affirm the judgment of the Appel-
late Court reversing the judgment of the trial court that
the plaintiff’s action was barred by the statute of limi-
tations.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
The relevant complaint has four counts. The first count is against ‘‘Jona-
than S. Aranow, M.D. of . . . Shoreline . . . .’’ The second count is against
Middlesex. The third count is against ‘‘Middlesex . . . and Aranow . . .
[respondeat] [s]uperior.’’ The fourth count is against Shoreline. Both the
first and the fourth count allege that Aranow is Shoreline’s employee but,
unlike the third count, they do not expressly allege that Shoreline is vicari-
ously liable for Aranow’s negligence under the doctrine of respondeat supe-
rior. Because the trial court apparently assumed that that was the case, and
the defendants do not contend otherwise, we also make that assumption.
2
Middlesex also claimed that the plaintiff did not have a viable claim of
vicarious liability against it because Aranow was not its actual agent or
employee and the doctrine of apparent agency is not recognized in tort
actions in this state. The trial court agreed with Middlesex and granted its
motion for summary judgment on the vicarious liability claim. The plaintiff
appealed to the Appellate Court, which affirmed the judgment of the trial
court. Cefaratti v. Aranow, 154 Conn. App. 1, 45, 105 A.3d 265 (2014). We
then granted the plaintiff’s petition for certification to appeal on the following
issue: ‘‘Did the Appellate Court properly conclude that the doctrine of appar-
ent authority does not apply to actions sounding in tort?’’ Cefaratti v. Ara-
now, 315 Conn. 919, 107 A.3d 960 (2015). In the companion case of Cefaratti
v. Aranow, 321 Conn. , A.3d (2016), issued on the same date as this
opinion, we answer that question in the negative and conclude that the case
must be remanded so that the plaintiff may have an opportunity to present
evidence sufficient to create a genuine issue of material fact under our
newly adopted standard for establishing apparent agency in a tort action.
3
The plaintiff has not claimed on appeal to the Appellate Court or to this
court that the continuing course of treatment doctrine tolls the statute of
limitations with respect to her claim that Middlesex is directly liable for its
own negligence. Accordingly, the trial court’s summary judgment rendered
in favor of Middlesex on that count still stands. See Cefaratti v. Aranow,
supra, 154 Conn. App. 6 n.3 (‘‘Count two of the complaint is not at issue in
this appeal. . . . Any possible negligence on the part of [Middlesex] is not
at issue on appeal.’’). To the extent that the plaintiff claims that Shoreline
is directly liable for its own negligence before and during the surgery, any
such claim is also barred for the same reason.
4
As we have explained, the only remaining claim against Middlesex is
that it is vicariously liable for Aranow’s negligence. See footnote 3 of this
opinion. Middlesex did not join in the present appeal, presumably because
the derivative claim against it would be barred if this court were to agree
with Aranow and Shoreline that the claim against Aranow is barred. For
convenience, we hereinafter refer to Aranow and Shoreline as the
defendants.
5
The plaintiff filled out a questionnaire at each of the follow-up appoint-
ments that specifically asked whether she was suffering from abdominal
pain. She indicated that she had abdominal pain only on the questionnaire for
the November 16, 2005 appointment. The plaintiff explained at her deposition
that she did not indicate that she had abdominal pain on the other question-
naires because she ‘‘didn’t consider it at that time to be abdominal pain,
and the way I described [it] to [Aranow] was different than what I would
describe [as] abdominal pain.’’
6
Although it is not absolutely clear, the plaintiff’s deposition testimony
strongly implies that she underwent surgery to have the surgical sponge
removed. Specifically, she stated that ‘‘[w]hen the sponge was in there’’ she
had a specific type of discomfort, and that she had not had that type of
discomfort ‘‘[s]ince the surgery . . . .’’ The plaintiff’s attorney confirmed
at oral argument before this court that the sponge was surgically removed
two years after it was discovered.
7
General Statutes § 52-584 provides: ‘‘No action to recover damages for
injury to the person, or to real or personal property, caused by negligence,
or by reckless or wanton misconduct, or by malpractice of a physician,
surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be
brought but within two years from the date when the injury is first sustained
or discovered or in the exercise of reasonable care should have been discov-
ered, and except that no such action may be brought more than three
years from the date of the act or omission complained of, except that a
counterclaim may be interposed in any such action any time before the
pleadings in such action are finally closed.’’
8
Accordingly, we reject the defendants’ contention that ‘‘[t]here was not
one scintilla of evidence in this case that the alleged abdominal pain was
ultimately traced to the retained sponge.’’ There is sufficient evidence to
create an issue of fact as to whether the sponge caused the discomfort
given that some of the discomfort disappeared after the sponge was removed.
Sherman v. Bristol Hospital, Inc., 79 Conn. App. 78, 89, 828 A.2d 1260
(2003) (‘‘An exception to the general rule with regard to expert medical
opinion evidence is when the medical condition is obvious or common in
everyday life. . . . Similarly, expert opinion may not be necessary as to
causation of an injury or illness if the plaintiff’s evidence creates a probability
so strong that a lay jury can form a reasonable belief.’’ [Citations omitted;
internal quotation marks omitted.]).
9
Although we conclude in this opinion that it is not necessary for a plaintiff
to prove that there must be a continuing failure to diagnose in order for the
doctrine to apply, in her opposition to the defendants’ motion for summary
judgment, we note that the plaintiff contended that the defendants ‘‘continu-
ally breached their duty from 2003 to 2009 by failing to properly examine
and follow up with the [p]laintiff to determine that a surgical sponge had
been left behind.’’ In other words, the plaintiff contended that the defendants’
failure to diagnose the true nature of her condition constituted continuing
negligence. The only evidence that the plaintiff cited to support this claim,
however, was Aranow’s deposition testimony that a sponge had been left
in the abdominal cavity of a former patient and that he had discovered the
sponge several years after the surgery when he ordered a CT scan. We
conclude that this evidence is not sufficient to raise a genuine issue of
material fact as to whether Aranow breached the governing standard of
care when he failed to diagnose the plaintiff’s true condition when she
complained of abdominal discomfort after the appeal. Rather, the plaintiff
was required to present expert testimony as to whether Aranow breached
the standard of care. See Doe v. Yale University, 252 Conn. 641, 687, 748
A.2d 834 (2000) (‘‘[e]xcept in the unusual case where the want of care or
skill is so gross that it presents an almost conclusive inference of want of
care . . . the testimony of an expert witness is necessary to establish both
the standard of proper professional skill or care on the part of a physician’’
[citation omitted]); Sullivan v. Yale-New Haven Hospital, Inc., 64 Conn.
App. 750, 767, 785 A.2d 588 (2001) (‘‘[b]ecause it was evident that the
substitute plaintiff did not produce an expert witness who would have
testified that the defendants had breached the standard of care in their
treatment of the plaintiff, the court properly found that the defendants were
entitled to judgment as a matter of law’’).
10
We recognize that our cases previously have contrasted situations in
which the alleged medical malpractice was ‘‘ ‘a single act of a physician or
surgeon’ ’’ with situations involving a ‘‘ ‘course of treatment.’ ’’ Blanchette
v. Barrett, supra, 229 Conn. 274, quoting Giambozi v. Peters, supra, 127
Conn. 385. These cases also may be interpreted as suggesting that the
continuing course of treatment doctrine does not apply when the only
malpractice was the initial single act of negligence. Blanchette v. Barrett,
supra, 274 (when malpractice was single act, ‘‘[t]he [s]tatute of [l]imitations
begins to run when the breach of duty occurs’’); Giambozi v. Peters, supra,
385 (same); Giambozi v. Peters, supra, 384 (‘‘where the injury was inflicted
at the time of the operation and not occasioned by subsequent treatment
or neglect, and there has been no fraudulent concealment by the surgeon,
the period of limitation for actions of this kind commences from the date
of the wrongful act or omission’’). In Giambozi v. Peters, supra, 385, how-
ever, there was no treatment at all after the initial act of negligence.
Blanchette also does not definitively answer the question of whether the
doctrine applies in the absence of ongoing negligence because the court in
that case found both that the defendant had a continuing duty to the plaintiff
after the initial act of negligence and that the defendant provided continually
negligent treatment. See Blanchette v. Barrett, supra, 279. Moreover, since
Giambozi was decided, this court has recognized that, in addition to
allowing a plaintiff to use the last date of the defendant’s negligent conduct
as the date that the negligence occurred, ‘‘[t]he policy underlying the continu-
ous treatment doctrine [also] seeks to maintain the physician/patient rela-
tionship 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.) Connell v. Colwell, supra, 214 Conn. 253. In light
of the strong policy in favor of allowing the plaintiff to seek treatment for
the negligently inflicted injury, we conclude that our suggestions in Giam-
bozi and Blanchette that, when ‘‘[t]he term malpractice . . . [is] applied to
a single act of a physician or surgeon . . . [t]he [s]tatute of [l]imitation[s]
begins to run when the breach of duty occurs’’; [internal quotation marks
omitted] Blanchette v. Barrett, supra, 274, quoting Giambozi v. Peters, supra,
385; were intended to apply to cases in which there has been no continuing
course of treatment for an identified medical condition, negligent or oth-
erwise.
11
See also Gomez v. Katz, 61 A.D. 3d 108, 109–17, 874 N.Y.S.2d 161
(2009) (doctrine applied when defendant caused injury during allegedly
negligent eye surgery); Jauregui v. Memorial Hospital of Sweetwater
County, 111 P.3d 914, 915, 918–19 (Wyo. 2005) (doctrine applied when
defendant left sponge in plaintiff’s shoulder during surgery), overruled on
other grounds by Harmon v. Star Valley Medical Center, 331 P.3d 1174,
1184 and n.9 (Wyo. 2014).
12
In McDermott v. Torre, supra, 56 N.Y.2d 403, the plaintiff consulted the
defendant dermatologist and requested that he examine a mole on her ankle.
The defendant conducted tests and concluded that the mole did not require
any treatment. Id., 404. The plaintiff then received continued treatment for
other ailments with the defendant, but received no further treatment for
the mole. Id. She continued to complain, however, about pain and discolor-
ation in her ankle. It was ultimately determined that the mole was cancerous.
Id. The plaintiff brought an action against the defendant after the limitations
period had expired, claiming that the continuing course of treatment doctrine
applied. Id., 404–405. The Court of Appeals of New York concluded that the
fact that the defendant had continually misdiagnosed the plaintiff’s condition
as benign was irrelevant for purposes of the doctrine. Id., 406. Rather,
the court concluded, the dispositive question was whether the ‘‘plaintiff’s
concern about her ankle was one of the purposes for her subsequent visits’’
to the defendant. Id. Thus, the plaintiff was not required to prove either
ongoing negligence or that the plaintiff and the defendant were aware of
the true nature of the plaintiff’s condition in order to invoke the doctrine.
13
The defendants contend that ‘‘[t]he trial court made a finding of fact
that the retained sponge was the identified medical condition,’’ not the
plaintiff’s abdominal discomfort, and that we must defer to this finding.
Trial courts do not make findings of fact, however, in ruling on motions for
summary judgment. Rather, viewing the evidence in the light most favorable
to the nonmoving party, they determine whether there are genuine issues
of material fact, which is a question of law. Because this court is in as good
a position as the trial court to make this determination, our review is plenary.
Gold v. Greenwich Hospital Assn., supra, 262 Conn. 253.
14
To support its conclusion that the continuing course of treatment doc-
trine does not apply in the present case, the trial court relied on our statement
in Martinelli v. Fusi, 290 Conn. 347, 364, 963 A.2d 640 (2009), that, although
evidence that the defendant was unaware of the true nature of the plaintiff’s
condition may indicate that the defendant was negligent, ‘‘it does not indicate
that the defendant was actually aware that the plaintiff’s condition required
further treatment, such that an ongoing duty to diagnose and treat that
condition could be imposed.’’ That principle, however, relates to the continu-
ing course of conduct doctrine, which is distinct from the continuing course
of treatment doctrine. See id., 357, 365–66 (analyzing doctrines separately);
Grey v. Stamford Health System, Inc., supra, 282 Conn. 755 (‘‘the primary
difference between the doctrines is that the [continuing course of treatment
doctrine] focuses on the plaintiff’s reasonable expectation that the treat-
ment for an existing condition will be ongoing, while the [continuing course
of conduct doctrine] focuses on the defendant’s duty to the plaintiff arising
from his knowledge of the plaintiff’s condition’’ [emphasis in original]).