DocketNumber: SC 19619, (SC 19749)
Citation Numbers: 193 A.3d 520, 330 Conn. 251
Judges: Palmer
Filed Date: 9/25/2018
Status: Precedential
Modified Date: 6/24/2022
**254The plaintiffs in this wrongful death action, Susan Angersola and Kathleen Thurz, coexecutors of the estate of the decedent, Patricia Sienkiewicz, appeal from the judgment of the trial court, which granted the motions to dismiss filed by the defendants, Radiologic Associates of Middletown, P.C. (Radiologic Associates), Robert Wolek, Middlesex Hospital, **255Shoreline Surgical Associates, P.C. (Shoreline), and Eileen Tobin, on the ground that the plaintiffs failed to commence their action within the five year repose period of General Statutes § 52-555,
The following facts and procedural history are relevant to our resolution of the plaintiffs' claims. On November 1, 2007, the decedent was admitted to Middlesex Hospital by her surgeon, Jonathan Blancaflor, an employee of Shoreline, for laparoscopic gastrointestinal surgery. On November 5, 2007, while the decedent was recovering from that surgery, Eileen Tobin, a physician's assistant also employed by Shoreline, ordered an X-ray of the decedent's chest. Robert Wolek, a radiologist employed by Radiologic Associates, which provides radiological services for Middlesex Hospital, interpreted the X-ray and dictated a report of his findings. The report was transcribed at 4:29 p.m. on November 5, 2007, and edited, approved, and electronically signed by Wolek at 10:52 p.m. that same day. In addition to reporting the presence of pulmonary opacities indicative of "congestive heart failure," Wolek also reported the presence of a separate "1.8 [centimeter] spiculated density in the left upper lung," indicative of lung cancer. Wolek recommended that the mass be investigated further by "[c]orrelation with older studies," if available, and by a computerized tomography (CT) scan. Wolek's **257report indicates that his findings were "called to the [hospital] floor at the time of the reading." A nurse's note in the decedent's hospital file indicates that the decedent's X-ray results were received at approximately 2:30 p.m. on November 5, 2007, and communicated to Tobin at that time.
On November 12, 2007, Tobin dictated a discharge summary for the decedent's medical file, in which she specifically referenced Wolek's findings regarding the decedent's congestive heart failure but not his diagnosis of a spiculated density in her left lung. Approximately four and one-half years later, on April 6, 2012, a CT scan of the decedent's lungs revealed a large neoplasm in the upper left lobe measuring 5.4 by 4 by 6.6 centimeters. The decedent died from stage IV lung cancer approximately two years later, on June 8, 2014.
On July 7, 2014, the plaintiffs commenced this action, alleging that the decedent's death was the direct result of the defendants' failure, or the failure of their agents or employees, to exercise reasonable care in a number of respects, including but not limited to their continuing failure to notify the decedent about the suspicious mass in her left lung even though they all were aware of the condition. Shortly thereafter, the defendants filed motions to dismiss for lack of subject matter jurisdiction, in which they argued that, because a wrongful death action is a statutorily *526created right of action that did not exist at common law, the plaintiffs' failure to commence the action within the five year statutory repose period deprived the court of subject matter jurisdiction over the plaintiffs' claims. See, e.g., Karp v. Urban Redevelopment Commission ,
In response, the plaintiffs filed a motion for limited discovery in which they asserted, inter alia, that the repose period had been tolled as to all of the defendants in accordance with the continuing course of conduct and continuing course of treatment doctrines. They further asserted that, under Conboy v. State ,
Subsequently, the trial court, Aurigemma , J. , heard argument on this issue. At that time, Tobin, Shoreline **260and Middlesex Hospital all argued that the continuing course of conduct doctrine was inapplicable to them because, among other reasons, none of them was aware, prior to the expiration of the repose period, that Wolek had diagnosed a mass in the decedent's left lung. See Grey v. Stamford Health System, Inc. , 282 Conn. at 745, 756,
In response, the plaintiffs reiterated their claims that the motions to dismiss must be denied because the limitation period of § 52-555 does not implicate the court's subject matter jurisdiction and that, even if it does, the allegations of the complaint raised a genuine issue of material fact as to whether the defendants knew about the mass in the decedent's lung prior to the expiration of the statutory repose period. Specifically, the plaintiffs' counsel argued: "Factually, this case poses a very interesting scenario. We have, in this case, a chest X-ray that was taken on November 5, 2007. It was interpreted by ... Wolek .... In his radiology report, [he] indicate[d] that he [found], in addition to findings consistent with congestive heart failure...
**261a 1.8 centimeter spiculated mass ... suggestive of cancer in the left lung.... [I]n their brief, [Wolek and Radiologic Associates] say not only did [Wolek] identify it but [that] he circled it on the film ... so that other health-care providers, looking at the film, would be able to clearly see what was ... there. In their [brief], they [also] say [that Wolek] was so ... concerned about [the mass] that he wanted to pass [the information] on ... to the [physician's assistant] who [had] ordered the film, and the way he did that was he called down to the [hospital] floor, [and] apparently spoke to a nurse because *528there's a record [of their conversation] in the chart. I can't tell you who the nurse was [because] I can't read her signature, but that [call occurred at] about 2:30 ... that afternoon. And the nurse, in the [chart], indicates [that she] passed [the information] on ... to ... Tobin. So, [we have] actual knowledge of Wolek, actual knowledge of [the] agent, servant, or employee of the hospital, and actual knowledge of Tobin.... Now, in her self-serving affidavit ... Tobin says, 'nobody told me anything. I didn't know.' ... [As] Wolek ... points out, [however], she had to know because, in the discharge summary ... she indicates ... [that the] X-ray [revealed] ... evidence of congestive heart failure. So, clearly, she was aware of at least some of the findings on the chest X-ray. This is all fodder for the jury. [It] is ... for the jury to decide who knew what and when."
After argument, the trial court granted the defendants' motions to dismiss. As a threshold matter, the court, relying primarily on Ecker v. West Hartford ,
**262With respect to its ruling on the continuing course of treatment doctrine, the court reasoned that the plaintiffs had failed to prove or allege facts sufficient to demonstrate that the defendants had treated or monitored the decedent for any condition following her discharge from the hospital. In addition, the court concluded that the continuing course of conduct doctrine was inapplicable to Wolek and Radiologic Associates because the plaintiffs' claims against them were predicated on Wolek's alleged failure to accurately report his findings to Tobin and Blancaflor. The court further asserted that it was "undisputed" that Wolek did report his findings to someone on the hospital floor, who, in turn, reported them to Tobin. The court also explained that "[t]he undisputed fact that ... Wolek reported the findings of his diagnosis to the decedent's treating health-care providers release[s] him [from] any continuing obligation to the decedent."
With respect to Tobin and Shoreline, the court determined that the continuing course of conduct doctrine was inapplicable to them because, in her affidavit, Tobin stated that she was not aware, prior to the commencement of the plaintiffs' action, that the X-ray she had ordered for the decedent on November 5, 2007, had revealed a mass in the decedent's left lung. The trial court observed that, although the plaintiffs "mention[ed] in their memorandum in opposition to the motions to dismiss that they intend[ed] to demand an evidentiary hearing," "they failed to present any evidence at the hearing at which the motions were argued [to rebut Tobin's claims]. The affidavits and records they have presented in opposition to the motion[s] to dismiss do not contain any evidence that Tobin knew about the abnormality in the chest X-ray."
Finally, the trial court concluded that the continuing course of conduct doctrine did not apply to Middlesex Hospital because the plaintiffs' claims against the **263hospital were derivative of their claims against Wolek and Radiologic Associates, which the court had dismissed, and, because, in the court's view, "[i]t would be virtually impossible for any hospital to be free from protracted and unknown liability if at any time a former patient with whom the hospital has no ongoing relationship could extend the limitations period by virtue *529of a claim that the hospital failed to send a patient's [X-ray] report" to the patient's physicians. After the court granted the motions to dismiss, the plaintiffs filed a timely motion to reargue, which the court denied.
On appeal, the plaintiffs claim that the trial court (1) incorrectly concluded that the repose period of § 52-555 is subject matter jurisdictional, (2) improperly denied their motion for limited discovery, (3) improperly failed to construe the complaint in the light most favorable to them, (4) misidentified disputed facts as undisputed, and (5) improperly resolved disputed jurisdictional facts without conducting an evidentiary hearing, as required by Conboy v. State , supra,
The defendants maintain that the trial court correctly concluded that the failure to comply with the repose period of § 52-555 deprived the court of subject matter jurisdiction over the present action and that the undisputed facts do not support application of either the continuing course of conduct doctrine or the continuing course of treatment doctrine. Some of the defendants also argue, for the first time on appeal, that the tolling doctrines on which the plaintiffs rely do not apply to **264§ 52-555. Those same defendants also argue that the plaintiffs waived the right to an evidentiary hearing by failing to request one prior to the trial court's ruling on the motions to dismiss.
For the reasons set forth hereinafter, we agree with the defendants that the trial court correctly determined that noncompliance with the repose provision of § 52-555 deprives a trial court of subject matter jurisdiction over the present action. We further conclude that the continuing course of conduct and continuing course of treatment doctrines are properly pleaded in avoidance of that statute. We then reject the defendants' contention that the plaintiffs failed to preserve their claim for an evidentiary hearing. Finally, although we conclude that the trial court correctly determined that the record in the present case does not support application of the continuing course of treatment doctrine, we agree with the plaintiffs that the trial court improperly denied the plaintiffs' request to conduct limited discovery or for an evidentiary hearing to resolve disputed jurisdictional facts related to their claim that the repose period was tolled by the continuing course of conduct doctrine.
We begin our analysis by setting forth the legal principles that govern our review of the plaintiffs' claims. "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.... When a ... court decides a ... question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light.... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.... The motion to dismiss ... admits all facts [that] are well pleaded, invokes the **265existing record and must be decided [on] that alone." (Internal quotation marks omitted.) *530Bennett v. New Milford Hospital, Inc. ,
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.... In determining whether a court has subject matter jurisdiction, however, we indulge every presumption in favor of jurisdiction." (Citation omitted; internal quotation marks omitted.) Reinke v. Sing ,
It is well established that "[a] statute of limitations is generally considered to be procedural, especially [when] the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action.... [When] the limitation is deemed procedural and personal it is subject to being waived unless it is specifically pleaded because the limitation is considered merely to act as a bar to a remedy otherwise available....
"[When], however, a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter.... In such cases, the time limitation is not to be treated as an ordinary statute of limitation ... but rather is a limitation on the [right] itself, and not of the remedy alone.... The courts of Connecticut have repeatedly held that, under such circumstances, the time limitation is a substantive and jurisdictional **266prerequisite, which may be raised at any time, even by the court sua sponte, and may not be waived." (Citations omitted; internal quotation marks omitted.) Ecker v. West Hartford , supra,
After the parties in the present case filed their briefs with this court, we issued our decision in Blakely v. Danbury Hospital ,
As we explained in Blakely , although § 52-555 has been amended on a number of occasions in the thirty years since Ecker was decided, the legislature has never seen fit to overrule our conclusion that compliance with the repose period is a jurisdictional prerequisite to suit.
*532See Blakely v. Danbury Hospital , supra,
Accordingly, despite the defendants' failure to raise the issue in the trial court, we must address their contention that the trial court lacked subject matter jurisdiction over the plaintiffs' action because the continuing course of conduct and continuing course of treatment doctrines do not apply to § 52-555. See Blakely v. Danbury Hospital , supra,
We conclude that the defendants' reliance on Williams is misplaced because, unlike the doctrine of equitable tolling at issue in Williams , which, when applicable, allows an untimely action to proceed; see, e.g., Gager v. Sanger ,
The continuing course of conduct doctrine delays the accrual of an action by "aggregate[ing] a series of actions by a tortfeasor for purposes of the limitations period, viewing the series of acts as an indivisible whole for that limited purpose. The practical effect is that '[w]hen the wrong [complained of] consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed.' ... Put another way, the continuing course of conduct doctrine redefines the point in time at which the cause of action accrues. See K. Graham, ' The Continuing Violations Doctrine,'
*533(comparing continuing course of conduct doctrine with other exceptions to statute of limitations and noting that continuing course of conduct doctrine takes 'more drastic step of redefining the very claim or claims as to which the limitations period or periods apply')." (Citations omitted.) Watts v. Chittenden ,
"We [also] have ... recognized ... that the statute of limitations, in the proper circumstances, may be tolled under the continuous [course of] treatment ... doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date.... As a general rule, [t]he [s]tatute of [l]imitations begins to run when the breach of duty occurs. When the injury is complete at the time of the act, the statutory period [starts] to run at that time. When, however, the injurious consequences arise from a course of treatment, the statute does not begin to run until the treatment is terminated.... [As] long as the relation of physician and patient continues as to the particular injury or malady [that 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." (Citation omitted; internal quotation marks omitted.) Grey v. Stamford Health System, Inc. , supra,
Thus, under both the continuing course of conduct and continuing course of treatment doctrines, a claim does not arise until the defendant's tortious conduct ceases. In such circumstances, we see no reason why these doctrines should not apply to statutorily created causes of action merely because the applicable limitations period is substantive rather than procedural, and we therefore see no reason why the legislature would disapprove of our application of these doctrines to causes of action it has created by statute. To be sure, "[a] conclusion that a time limit is subject matter jurisdictional has very serious and final consequences. It means that, except in very rare circumstances; e.g., **272Upjohn Co. v. Zoning Board of Appeals ,
We therefore must address the plaintiffs' contention that the trial court, in granting the defendants' motions to dismiss, improperly resolved disputed jurisdictional facts without affording the plaintiffs an opportunity either to engage in limited discovery or to present evidence in furtherance of their claim that the statute of limitations was tolled by the continuing course of conduct and continuing course of treatment doctrines. We agree with the plaintiffs with respect to the continuing course of conduct doctrine but disagree that the trial court incorrectly resolved their claims under the continuing course of treatment doctrine.
**273Before addressing the merits of the plaintiffs' claim, however, we briefly address the defendants' contention that the plaintiffs waived the right to an evidentiary hearing by failing to request one in a timely manner. As we previously indicated, the trial court, in its memorandum of decision, observed that the plaintiffs had failed to present evidence in support of their tolling claims, stating in relevant part: "[The plaintiffs] mention in their memorandum in opposition to the motions to dismiss that they intend to demand an evidentiary hearing. However, they failed to present any evidence at the hearing at which the motions were argued." As the plaintiffs have explained, however, the trial court appears to have misread their opposing memorandum because they actually stated therein: "To the extent the court in making this jurisdictional determination considers anything other than the factual allegations contained in the plaintiffs' complaint, the plaintiff[s] request an evidentiary hearing to address any critical disputed issues of fact." Thus, contrary to the trial court's determination, the plaintiffs did not request an evidentiary hearing prior to oral argument; rather, it was the plaintiffs' position that their complaint alone was sufficient to establish the court's jurisdiction but that a hearing would be necessary if the court did not agree. As the plaintiffs maintain, "[i]t was the court, not the plaintiffs, who would [have] know[n] if that eventuality was to occur." We note, moreover, as we previously indicated, that the plaintiffs brought this apparent misunderstanding to the trial court's attention in their motion to reargue, which the trial court summarily denied. In light of this procedural history, we are persuaded that the plaintiffs' claim for an evidentiary hearing is preserved. But, even if it were not, the defendants do not dispute that the plaintiffs' challenge to the trial court's denial of their motion for limited discovery is preserved. As we previously indicated, the trial court, **274Domnarski , J. , denied the plaintiffs' discovery motion on the basis of its conclusion that Kelly v. Albertsen , supra,
We previously have explained that "[t]rial courts addressing motions to dismiss for lack of subject matter jurisdiction ... may encounter different situations, depending on the status of the record in the case.... [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.... Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.
"When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light.... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader....
"In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ... the trial court, **275in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint.... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts].... If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings.... If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations ... or only evidence that fails to call those allegations into question ... the plaintiff need not supply counteraffidavits or other evidence to support the complaint ... but may rest on the jurisdictional allegations therein....
"Finally, [when] a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts. Gordon v. H.N.S. Management Co. ,
**276emphasis omitted; footnotes omitted; internal quotation marks omitted.). Conboy v. State , supra,
*536As we previously indicated, the trial court concluded that the plaintiffs could not prevail under the continuing course of treatment doctrine because the plaintiffs had failed to allege or present evidence to establish that the defendants had treated or monitored the decedent for an identified condition following her discharge from the hospital. "To establish a continuous course of treatment for purposes of tolling the statute of limitations in medical malpractice actions, the plaintiff is required to prove" that (1) "he or she had an identified medical condition that required ongoing treatment or monitoring," (2) "the defendant provided ongoing treatment or monitoring of that medical condition after the allegedly negligent conduct, or ... the plaintiff reasonably could have anticipated that the defendant would do so," and (3) "the plaintiff brought the action within the appropriate statutory period after the date that treatment terminated." Grey v. Stamford Health System, Inc. , supra,
We have also explained that "[t]he primary difference between the [continuing course of conduct and continuing course of treatment] doctrines is that the [continuous course of treatment doctrine] focuses on the plaintiff's reasonable expectation that the treatment for an existing condition will be ongoing, [whereas] the [continuing course of conduct doctrine] focuses on the defendant's duty to the plaintiff arising from his knowledge of the plaintiff's condition. As we have indicated, the policy underlying the continuous [course of]
**277treatment doctrine is to allow the plaintiff to complete treatment for an existing condition with the defendant and to protect the physician-patient relationship during that period. Accordingly, 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.... In contrast, under the continuing course of conduct doctrine, if the defendant had reason to know that the plaintiff required ongoing treatment or monitoring for a particular condition, then the defendant may have had a continuing duty to warn the plaintiff or to monitor the condition, and the continuing breach of that duty tolls the statute of limitations, regardless of whether the plaintiff had knowledge of any reason to seek further treatment." (Citations omitted; emphasis omitted.) Id., at 755-56,
Application of these principles to the present facts leads us to conclude that the plaintiffs cannot prevail under the continuing course of treatment doctrine because, in addition to the reasons cited by the trial court, it is undisputed that the decedent was never advised by any of the defendants that Wolek had diagnosed a suspicious mass in her left lung. Never having been advised about the mass, the decedent could not possibly have expected the defendants to provide ongoing treatment for it, and the plaintiffs do not claim that the defendants provided any such treatment.
Whether the plaintiffs can prevail under the continuing course of conduct doctrine is a different matter, however, and one that the trial court properly could not resolve without conducting an evidentiary hearing or allowing the plaintiffs to conduct limited discovery directed toward establishing the court's jurisdiction. Indeed, the present case is precisely the sort of case we had in mind in Conboy when we observed that "the question of jurisdiction [may be so] intertwined with **278the merits of the case ... [that] a court cannot resolve the jurisdictional question without a hearing to evaluate those merits"; *537Conboy v. State , supra,
We also agree with the plaintiffs that the trial court's findings with respect to Tobin and Wolek are irreconcilable and further indication of the need for an evidentiary hearing or limited discovery, at the least, to determine jurisdictional facts. As we previously indicated, the trial court concluded that the continuing course of conduct doctrine was inapplicable to Tobin because it was undisputed that Tobin was never informed about the mass. At the same time, the trial court concluded that the doctrine was inapplicable to Wolek because it was **279undisputed that Wolek had communicated the decedent's X-ray results to Tobin. Having reviewed the entire record, we agree with the plaintiffs that the only facts that were undisputed in the trial court are that Wolek diagnosed the decedent with congestive heart failure and a mass in her left lung, Wolek wrote in his report that his findings were "called to the [hospital] floor at the time of the reading," and a note in the decedent's hospital file indicates that the decedent's X-ray results were reported to Tobin at approximately 2:30 p.m. It is also undisputed that Tobin, under Blancaflor's supervision, prescribed "Lasix 20 mg IV" to treat a condition or conditions relating to the decedent's congestive heart failure.
What is very much in dispute, however, and what the plaintiffs have a right to explore by whichever method the trial court deems appropriate, that is, limited discovery or an evidentiary hearing, is the identity of the hospital employee who spoke to Wolek when he called the hospital floor at the time of the reading, the information that Wolek may have imparted to that individual, and the information that that individual, in turn, may have imparted to Tobin.
In this opinion the other justices concurred.
General Statutes § 52-555 provides in relevant part: "(a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of...."
The plaintiffs appealed to the Appellate Court from the judgment of the trial court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
This court has long recognized that, in certain circumstances, a statute of limitations may be tolled under the continuous course of treatment or the continuing course of conduct doctrine, thereby extending the time within which the plaintiff must commence his or her action. E.g., Blanchette v. Barrett ,
We note that the present case involves two appeals stemming from two separate actions that subsequently were consolidated in the trial court. In the second appeal (Docket No. SC 19749), the plaintiffs claim that the trial court improperly dismissed their second wrongful death action that they brought against the defendants on the ground that the plaintiffs were collaterally estopped from relitigating the issue of whether their claims against the defendants were timely under § 52-555. Our resolution of the first appeal renders the second appeal moot, and, therefore, we dismiss the plaintiffs' second appeal. We reverse only the judgment in the plaintiffs' first wrongful death action.
In Kelly , the Appellate Court noted the absence of any authority requiring "a court to allow a plaintiff to conduct discovery to meet the burden of alleging facts that clearly demonstrate that the court has subject matter jurisdiction prior to the court's ruling on a motion to dismiss challenging jurisdiction. Indeed, [the] policy that all other action in a case 'comes to a halt' once the issue of subject matter jurisdiction has been raised counsels against the allowance of discovery prior to the court's determination of the jurisdictional issue." Kelly v. Albertsen , supra,
Notably, several other state legislatures have amended their wrongful death statutes to overrule a prior judicial interpretation that the statutes' limitation period implicates a court's subject matter jurisdiction. See, e.g.,
We find no merit in Wolek and Radiologic Associates' assertion that the trial court's judgment should be affirmed as to them because Wolek fulfilled his duty to the decedent by reporting his findings to the hospital floor. As we have explained, the record is far from clear as to whether Wolek reported both of his findings to the hospital floor or only one of them because only the congestive heart failure diagnosis appears in the decedent's medical records corresponding to her November, 2007 hospital stay.