Gilman v. Shames

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GLENN GILMAN ET AL. v. BRIAN SHAMES ET AL.
(AC 44456)
Alvord, Elgo and Cradle, Js.
Syllabus
The defendant state of Connecticut appealed from the judgment of the trial
court denying its motion to dismiss the plaintiff’s action on the ground
of sovereign immunity. Pursuant to the applicable statute (§ 4-147), the
plaintiff filed a notice of claim with the Office of the Claims Commis-
sioner, seeking permission to sue the defendants, the state and S, a
physician employed by the University of Connecticut Health Center, for
damages for emotional distress and loss of consortium resulting from
the death of his domestic partner, which he claimed was caused by the
medical malpractice of S and the hospital that provided her care, which
was a part of the University of Connecticut Health Center. The commis-
sioner authorized the plaintiff to sue for damages of up to $500,000 for
alleged medical malpractice. The plaintiff commenced an action against
the defendants for bystander emotional distress. The defendants filed
a motion to dismiss, which the trial court granted, concluding, inter
alia, that the plaintiff’s claim was barred by sovereign immunity. This
court affirmed the trial court’s decision, concluding that the plaintiff’s
derivative claim was not viable because it was not accompanied by a
wrongful death action brought by the decedent’s estate. The plaintiff
commenced the present action against the defendants, alleging wrongful
death in his capacity as administrator of the decedent’s estate and
bystander emotional distress in his individual capacity. The defendants
filed a motion to dismiss for lack of subject matter jurisdiction, arguing
that the commissioner had not granted the plaintiff permission to bring
a claim on behalf of the decedent’s estate and that the wrongful death
action was barred by the applicable statute of limitations (§ 52-555).
The plaintiff withdrew its claims against S and, thereafter, the trial court
denied the motion to dismiss, determining that the plaintiff’s notice was
sufficient and that the commissioner’s waiver of sovereign immunity
validly encompassed the claims. On the defendant state’s appeal to this
court, held:
1. The trial court improperly denied the defendants’ motion to dismiss: the
plaintiff’s notice of claim that was filed with the commissioner indicated
only that he sought to bring a claim against the defendants in his capacity
as an individual and did not properly apprise the commissioner of the
plaintiff’s intention to sue the state in an administrative capacity; more-
over, contrary to the plaintiff’s assertion, his notice of claim was not
analogous to that provided to the commissioner in Arroyo v. University
of Connecticut Health Center (175 Conn. App. 493), which set forth the
same claim that was argued at trial merely in a slightly different fashion,
because, in the present case, the plaintiff’s wrongful death action brought
as administrator of the decedent’s estate and his derivative bystander
emotional distress action brought in his individual capacity were two
wholly separate claims; accordingly, the commissioner’s waiver of sover-
eign immunity could not be said to encompass the wrongful death claim
at issue in the appeal, and the trial court did not have subject matter
jurisdiction over the plaintiff’s claims.
2. The accidental failure of suit statute (§ 52-592) did not save the plaintiff’s
action from his lack of compliance with the statute of limitations for
wrongful death actions: the trial court’s reliance on Isaac v. Mount
Sinai Hospital (210 Conn. 721) in determining that § 52-592 applied to
the present action was misplaced, as, in Isaac, our Supreme Court
liberally construed § 52-592 to find that the statute saved the plaintiff’s
second wrongful death action because the cause of action, claimed
factual background and defendants were identical to those of her first
action and, in the present case, the plaintiff did not bring the same claim
in two consecutive actions; moreover, at the time of his first action, the
plaintiff did not meet the statutory requirement to bring a claim on behalf
of the decedent’s estate because he did not become the administrator
of the estate until after the first action was dismissed and at no point
during the pendency of the first action did he hold himself out to be
the administrator of the estate; accordingly, the plaintiff’s wrongful death
action did not overlap with his individual claim in his first action in a
manner that would implicate § 52-592, and the judgment of the trial
court was reversed and the case was remanded with direction to render
a judgment of dismissal.
Argued December 7, 2021—officially released April 26, 2022
Procedural History
Action to recover damages for, inter alia, the allegedly
wrongful death of the plaintiff administrator’s decedent
as a result of the defendants’ negligence, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Middlesex, where the court, Frechette, J., denied
the defendants’ motion to dismiss; thereafter, the plain-
tiffs withdrew their complaint with respect to the
named defendant, and the defendant state of Connecti-
cut appealed to this court. Reversed; judgment directed.
Michael G. Rigg, with whom, on the brief, was Robert
D. Silva, for the appellant (defendant state of Connecti-
cut).
Harris Appelman, for the appellees (plaintiffs).
Opinion
ELGO, J. The defendant state of Connecticut1 appeals
from the judgment of the trial court denying its motion
to dismiss the action of the plaintiff Glenn Gilman2
on the ground of sovereign immunity. On appeal, the
defendant claims that the court improperly determined
that (1) the Claims Commissioner (commissioner) had
waived sovereign immunity with respect to the plain-
tiff’s claims, and (2) the accidental failure of suit statute,
General Statutes § 52-592,3 exempted the plaintiff from
the two year time limit for bringing a wrongful death
action under General Statutes § 52-555.4 We reverse the
judgment of the trial court.
The following facts, as found by this court in Gilman
v. Shames, 189 Conn. App. 736, 208 A.3d 1279 (2019),
are relevant to this appeal. ‘‘From about December 15,
2014, through August 19, 2015, Shames—who was at
all relevant times a physician employed by the Univer-
sity of Connecticut Health Center, of which the John
Dempsey Hospital (hospital) is a part—provided medi-
cal care and treatment to the decedent, who was the
plaintiff’s fiancée and domestic partner. The decedent
died on October 1, 2015.
‘‘In June, 2016, pursuant to General Statutes § 4-147,
the plaintiff filed a notice of claim with the Office of
the Claims Commissioner seeking permission to sue
the [defendant] for damages on the basis of injuries he
claimed to have suffered, including emotional distress
and loss of consortium, stemming from medical mal-
practice allegedly committed against the decedent by
Shames and the hospital. By way of a memorandum of
decision dated February 23, 2017, the [commissioner],
absent objection, authorized the plaintiff to sue the
[defendant] for damages of up to $500,000 for alleged
medical malpractice by general surgeons or other simi-
lar health care providers who constitute state officers
and employees, as defined by General Statutes (Rev.
to 2015) § 4-141, of the hospital.
‘‘On June 26, 2017, the plaintiff, representing himself,
commenced the [first] action against Shames and the
hospital. In his original two count complaint, the plain-
tiff raised claims sounding in bystander emotional dis-
tress directed to Shames and the hospital.
‘‘On August 25, 2017, Shames and the hospital filed
a motion to dismiss the action, which was accompanied
by a separate memorandum of law, asserting that the
court lacked subject matter jurisdiction over the plain-
tiff’s bystander emotional distress claims. Specifically,
they asserted that the plaintiff’s claim directed to
Shames was barred by sovereign immunity and/or by
statutory immunity pursuant to [General Statutes] § 4-
165, and that the plaintiff could not pursue a bystander
emotional distress action in the absence of a wrongful
death action commenced by the decedent’s estate, which
had not brought a wrongful death action or received
authorization from the [commissioner] to commence
such an action. In addition, Shames and the hospital
argued that the plaintiff improperly had brought suit
against the hospital because the plaintiff had received
authorization from the [commissioner] to sue the
[defendant] only. On October 11, 2017, the plaintiff filed
a motion to substitute the [defendant] as a party defen-
dant in lieu of the hospital, which the trial court granted
on October 24, 2017. On October 23, 2017, the plaintiff
filed an objection and a separate memorandum of law
in opposition to the motion to dismiss. On November
6, 2017, the [defendant and Shames] filed a reply brief,
in which they argued additionally that the decedent’s
estate would be time barred from bringing a wrongful
death action as a result of the expiration of the subject
matter jurisdictional limitations period set forth in
§ 52-555.
‘‘On November 13, 2017, the plaintiff filed his opera-
tive two count complaint raising claims sounding in
bystander emotional distress directed to [the defendant
and Shames]. He alleged, inter alia, that Shames had
administered ineffective treatments to the decedent for
approximately eight months and that, notwithstanding
the lack of improvement in her condition, Shames had
failed to alter the course of the treatments or to take
‘further diagnostic action as is consistent with standard
practice,’ which constituted a substantial factor in the
decedent’s death. The plaintiff additionally alleged that
he had been harmed by Shames’ conduct and by the
[defendant’s] breach of its duty to the decedent to
ensure that the [defendant’s] agents, servants, and/or
employees acted as ‘reasonably prudent medical profes-
sionals.’ More particularly, the plaintiff alleged that he
had sustained injuries stemming from his ‘contempo-
rary sensory perception of observing and/or experienc-
ing the demise of the decedent, the decedent’s suffering,
the decedent’s health deteriorating, the decedent’s pain
and suffering, the administration of life support and,
ultimately, [the decedent’s] death . . . .’
‘‘On December 4, 2017, the court heard argument on
the [defendant’s and Shames’] motion to dismiss. On
February 9, 2018, the court granted the motion to dis-
miss. With respect to the plaintiff’s bystander emotional
distress claim directed to Shames, the court concluded
that (1) to the extent that the plaintiff was suing Shames
in Shames’ official capacity as an employee of the hospi-
tal, which was an agent of the [defendant], the plaintiff’s
claim was barred by sovereign immunity, and (2) to the
extent that the plaintiff was suing Shames in Shames’
individual capacity, the plaintiff’s claim was barred by
statutory immunity pursuant to § 4-165. In addition,
without limiting its analysis to the plaintiff’s claim
against the [defendant], the court concluded that the
plaintiff’s bystander emotional distress ‘claims’ were
derivative claims that were not viable absent a predicate
wrongful death action commenced by the decedent’s
estate, which had not commenced such an action and,
as a result of the expiration of the limitations period set
forth in § 52-555, could not commence such an action.’’
(Footnotes omitted.) Id., 738–42.
The plaintiff then appealed to this court, which affirmed
the trial court’s decision. Id., 754. In doing so, this court
concluded that the plaintiff’s claim for bystander emo-
tional distress was a ‘‘ ‘derivative claim’ ’’ that ‘‘ ‘can be
compensable only if it flows from the bodily injury of
another person.’ ’’ Id., 748–49. Relying on our Supreme
Court’s decision in Jacoby v. Brinkerhoff, 250 Conn.
86, 735 A.2d 347 (1999), which established that ‘‘[a]
plaintiff’s failure to join his [derivative] claim with a
predicate action . . . was fatal’’; Gilman v. Shames,
supra, 189 Conn. App. 750–51; this court held that the
plaintiff’s claim was ‘‘not viable’’ because it was not
accompanied by a wrongful death action brought by
the decedent’s estate. Id., 752.
On May 19, 2020, the plaintiff commenced the present
action by way of a five count complaint. The first count,
brought against the defendant by the plaintiff in his
capacity as the administrator of the decedent’s estate,5
sounded in wrongful death.6 The third count, brought by
the plaintiff in his individual capacity, alleged bystander
emotional distress as a result of the defendant’s negli-
gent oversight of the decedent’s care. The fifth count,
brought by the plaintiff as the administrator of the dece-
dent’s estate, asserted that the defendant’s conduct also
constituted a breach of contract between the defendant
and the decedent.7
On June 18, 2020, the defendant and Shames filed a
motion to dismiss for lack of subject matter jurisdiction.
They argued, inter alia, that the commissioner had not
granted the plaintiff permission to bring his claim on
behalf of the decedent’s estate, that the wrongful death
action was not brought within two years of the dece-
dent’s death as mandated by § 52-555, and that the plain-
tiff’s failure to bring the initial action in his capacity as
the administrator of the decedent’s estate prevented
§ 52-592 from extending the statute of limitations set
forth in § 52-555. The plaintiff filed an opposition to the
motion to dismiss accompanied by a memorandum of
law on November 3, 2020, in which he argued that a
‘‘nontechnical interpretation’’ of the plaintiff’s notice of
claim was proper and that the accidental failure of suit
statute applied regardless of his status with respect to
the decedent’s estate at the time of the initial action.
On December 16, 2020, the court issued its memoran-
dum of decision on the defendant’s motion to dismiss.
Noting that both of the plaintiff’s actions were centered
on alleged medical malpractice on the part of the defen-
dant’s agents, the court broadly construed the plaintiff’s
notice of claim and concluded that, however ‘‘inartfully
drawn,’’ (1) the notice properly apprised the commis-
sioner of the plaintiff’s intention to bring a wrongful
death claim on behalf of the decedent’s estate and (2)
the waiver of sovereign immunity by the commissioner
validly encompassed that claim. With respect to the
accidental failure of suit statute, the court emphasized
that § 52-592 ‘‘ ‘is remedial and is to be liberally interpre-
ted.’ ’’ The court then analogized the present matter to
Isaac v. Mount Sinai Hospital, 210 Conn. 721, 732–33,
557 A.2d 116 (1989), wherein our Supreme Court held
that if a sufficient ‘‘identity of interest’’ exists between
the parties bringing two actions, ‘‘total identity of plain-
tiffs is not a prerequisite to application of [§ 52-592].’’
The court reasoned that, because the plaintiff—like the
plaintiff in Isaac—was not the administrator at the time
of his first action but was appointed prior to bringing
the present action, § 52-592 should apply in the present
case. The court thus denied the defendant’s motion to
dismiss, and this appeal followed.
I
The defendant first claims that the court improperly
determined that it had subject matter jurisdiction over
the plaintiff’s action. The defendant argues that the
court misconstrued the commissioner’s prior waiver of
sovereign immunity to permit the plaintiff to proceed
with his claims in the present action. We agree with
the defendant.
We begin our analysis with the relevant standard of
review and legal principles. ‘‘The principle that the state
cannot be sued without its consent, or sovereign immu-
nity, is well established under our case law. . . . There-
fore, [o]ur Supreme Court expressly has stated that a
plaintiff seeking monetary damages against the state
must first obtain authorization from the [commis-
sioner]. . . . [Section] 4-147 provides in relevant part:
Any person wishing to present a claim against the state
shall file with the office of the [commissioner] a notice
of claim . . . containing the following information: (1)
The name and address of the claimant; the name and
address of his principal, if the claimant is acting in a
representative capacity, and the name and address of
his attorney, if the claimant is so represented; (2) a
concise statement of the basis of the claim, including
the date, time, place and circumstances of the act or
event complained of; (3) a statement of the amount
requested; and (4) a request for permission to sue the
state, if such permission is sought. . . . [T]he [commis-
sioner] may deny or dismiss the claim, order immediate
payment of a claim not exceeding [$7500], recommend
to the General Assembly payment of a claim exceeding
[$7500] or grant permission to sue the state. . . . As a
general matter, [s]overeign immunity relates to a court’s
subject matter jurisdiction over a case, and therefore
presents a question of law over which we exercise [ple-
nary] review.’’ (Citations omitted; emphasis added;
emphasis in original; internal quotation marks omitted.)
Arroyo v. University of Connecticut Health Center, 175
Conn. App. 493, 501–502, 167 A.3d 1112, cert. denied,
327 Conn. 973, 174 A.3d 192 (2017).
‘‘The doctrine of sovereign immunity is a rule of com-
mon law that operates as a strong presumption in favor
of the state’s immunity from liability or suit. . . . [It is
a] well established principle that statutes in derogation
of sovereign immunity should be strictly construed.
. . . [When] there is any doubt about their meaning or
intent they are given the effect which makes the least
rather than the most change in sovereign immunity.’’
(Citation omitted; emphasis omitted; internal quotation
marks omitted.) Envirotest Systems Corp. v. Commis-
sioner of Motor Vehicles, 293 Conn. 382, 387–88, 978
A.2d 49 (2009).
In his notice of claim filed with the commissioner on
June 9, 2016, the plaintiff stated in relevant part: ‘‘I am
making a claim for my pain and suffering and emotional
distress that I experienced because of medical malprac-
tice committed by [the hospital and Shames] regarding
the treatment and diagnosis of [the decedent]. I am also
making a claim for loss of consortium.’’ At no point
therein did the plaintiff indicate that he sought to bring
a claim against the defendant in any capacity other
than as an individual.8 In light of the plain text of the
plaintiff’s notice of claim, we cannot agree with the
court that the notice properly apprised the commis-
sioner of the plaintiff’s intention to sue the defendant
in an administrative capacity.
Although the plaintiff argues that the court correctly
relied on Arroyo in holding that the February 23, 2017
waiver of sovereign immunity encompassed the claims
brought in the present action, the situation set forth in
Arroyo materially differs from that which is before us.
In that case, the plaintiff patient and his spouse brought
an action against the defendant hospital and the state
alleging medical malpractice with respect to a vasec-
tomy performed on him by one of the defendant hospi-
tal’s doctors. Arroyo v. University of Connecticut
Health Center, supra, 175 Conn. App. 495–96. After the
court rendered judgment for the plaintiffs, the defen-
dants appealed, claiming, inter alia, that the plaintiffs
had failed to properly obtain a waiver of sovereign
immunity. Id., 495. Comparing the evidence introduced
at trial to the allegations set forth in the plaintiffs’ notice
of claim, this court concluded that ‘‘the plaintiffs’ theory
of liability in their notice accurately sums up the theory
of liability presented at trial, albeit in a truncated man-
ner . . . .’’ Id., 506. This court further noted that,
although ‘‘the basis of the claim in the notice to the
commissioner was not as particularized as it might have
been,’’ the lack of discovery available to the plaintiffs
in advance of filing their notice of claim counseled
against ‘‘attaching any binding significance’’ to the ini-
tial formulation of their claim set forth in the notice.
Id., 506–507.
Here, we are not faced with the same claim that is
merely presented under one legal theory in the notice
of claim and argued in a slightly different fashion at
trial. See id., 505–506. Moreover, unlike Arroyo, the
claimants are not the same. The plaintiff’s wrongful
death action brought as administrator of the decedent’s
estate and his derivative bystander emotional distress
claim brought in his individual capacity are two wholly
separate claims. See Champagne v. Raybestos-Manhat-
tan, Inc., 212 Conn. 509, 563–64, 562 A.2d 1100 (1989)
(‘‘[T]he plaintiff’s claim as administratrix . . . and the
plaintiff’s individual claim . . . are two separate
causes of action. . . . [A]lthough [the plaintiff’s indi-
vidual claim] . . . is ‘derivative,’ it is still a separate
cause of action . . . .’’ (Citations omitted.)). It follows
that, for the court to have had jurisdiction over his
wrongful death claim brought on behalf of the dece-
dent’s estate, the plaintiff was obligated, pursuant to
§ 4-147 (2), to provide a concise statement of the basis
of that particular claim and to identify himself as acting
in a representative capacity. See, e.g., Morneau v. State,
150 Conn. App. 237, 252, 90 A.3d 1003 (plaintiff seeking
waiver of sovereign immunity ‘‘needed to include infor-
mation that would clarify the nature of the waiver
sought and ensure that the [commissioner], and subse-
quently the General Assembly . . . would have an
understanding of the nature of that waiver’’), cert.
denied, 312 Conn. 926, 95 A.3d 522 (2014).
In the absence of proper notice to the commissioner,
the commissioner’s waiver of sovereign immunity can-
not be said to encompass the claim at issue in this
appeal. In the absence of such a waiver, we conclude
that the court did not have subject matter jurisdiction
over the plaintiff’s claims. For that reason, the court
improperly denied the defendant’s motion to dismiss.
II
In light of our resolution of the defendant’s sovereign
immunity claim, we need not address its second claim
of error. However, because of the possibility that this
issue may arise in the future, we also consider the
defendant’s claim that the court improperly concluded
that the accidental failure of suit statute exempted the
plaintiff from the two year time limit for bringing a
wrongful death action under § 52-555. The defendant
contends that, because the plaintiff’s prior action was
brought solely in his individual capacity, § 52-592 can-
not save his current action. We agree.
‘‘ ‘[T]he question of whether [a] court properly applied
§ 52-592 presents an issue of law over which our review
is plenary.’ ’’ White v. Dept. of Children & Families,
136 Conn. App. 759, 764, 51 A.3d 1116, cert. denied, 307
Conn. 906, 53 A.3d 221 (2012). ‘‘ ‘[T]he accidental failure
of suit statute can be traced as far back as 1862 . . .
and is a savings statute that is intended to promote the
strong policy favoring the adjudication of cases on their
merits rather than the disposal of them on the grounds
enumerated in § 52-592 (a). . . . We note, however,
that this policy is not without limits. If it were, there
would be no statutes of limitations. Even the saving[s]
statute does not guarantee that all plaintiffs have the
opportunity to have their cases decided on the merits.
It merely allows them a limited opportunity to correct
certain defects in their actions within a certain period
of time.’ ’’ Riccio v. Bristol Hospital, Inc., 341 Conn.
772, 780, 267 A.3d 799 (2022).
In concluding that the accidental failure of suit statute
applied in the present case, the court relied entirely on
Isaac v. Mount Sinai Hospital, supra, 210 Conn. 721.
That reliance is misplaced. In Isaac, the plaintiff
brought her first wrongful death action prior to officially
being named administratrix of the decedent’s estate.9
Id., 723. At the time the plaintiff formally became the
administratrix, the statute of limitations laid out in § 52-
555 already had run. Id. The defendant hospital filed
a motion to dismiss alleging a lack of subject matter
jurisdiction, which the trial court granted, and this court
upheld that judgment on appeal. Id., 724. Four years
after bringing that initial action, the plaintiff filed a
second wrongful death action, which the trial court
dismissed. Id. On appeal, our Supreme Court empha-
sized that § 52-592 ‘‘ ‘is remedial and is to be liberally
interpreted.’ ’’ Id., 728. The Supreme Court then rea-
soned that, even though the plaintiff brought her first
action in her individual capacity and her second action
as administratrix, she maintained an ‘‘identity of inter-
est’’ that allowed her second action to be saved by § 52-
592. Id., 732–33. The court stated: ‘‘[W]e conclude that
total identity of plaintiffs is not a prerequisite to applica-
tion of the statute. We look, instead, to the essence of
the plaintiff’s status and the interest she represented.
[The plaintiff] was the purported administratrix of [the
decedent’s] estate in the first instance and the actual
administratrix in the second case. The cause of action
and the claimed factual background, as well as all defen-
dants, were identical in both instances. Accordingly,
application of § 52-592 to this case is not precluded.’’
Id., 733.
Unlike the plaintiff in Isaac, the plaintiff in the pres-
ent case did not bring the same claim in two consecutive
actions. In Gilman, the plaintiff brought a claim for
bystander emotional distress solely as an individual,
and this court specifically concluded that the plaintiff
had brought no claim for wrongful death in a representa-
tive capacity. Gilman v. Shames, supra, 189 Conn. App.
751–52. The record does not reflect that, at any point
during the pendency of Gilman, the plaintiff held him-
self out as the ‘‘purported administrat[or]’’ of the dece-
dent’s estate. Isaac v. Mount Sinai Hospital, supra, 210
Conn. 733. It is undisputed that the plaintiff did not
become the administrator of the decedent’s estate until
May 23, 2018, at which point the trial court in Gilman
already had dismissed the action. Accordingly, at the
time of the first action, the plaintiff did not meet the
statutory requirement to bring a claim on behalf of the
decedent’s estate. Ellis v. Cohen, 118 Conn. App. 211,
216, 982 A.2d 1130 (2009) (‘‘§ 52-555 creates a cause of
action for wrongful death that is maintainable on behalf
of the estate only by an executor or administrator’’
(emphasis added)). Without the ability to have brought
an action as administrator in the first instance, we can-
not agree that the plaintiff’s attempt to litigate his indi-
vidual claim in Gilman properly overlaps with his cur-
rent wrongful death action such that § 52-592 is
implicated. See White v. Dept. of Children & Families,
supra, 136 Conn. App. 766 (‘‘[I]n the present case, the
plaintiff is alleging a new cause of action that is separate
from the cause of action that was the basis of her
[original] complaint. Because the present case involves
a new cause of action, the plaintiff may not invoke
§ 52-592 to save any untimely claims.’’). We therefore
conclude that the accidental failure of suit statute does
not apply in the present case to save the plaintiff’s
action from his lack of compliance with the statute of
limitations for wrongful death actions.10
The judgment is reversed and the case is remanded
with direction to render a judgment of dismissal.
In this opinion the other judges concurred.
1
The plaintiff also named Brian Shames, a physician, as a defendant in
his complaint. On November 9, 2020, the plaintiff filed a withdrawal of his
complaint with respect to Shames only. For clarity, we refer to the state of
Connecticut as the defendant and Shames by name in this opinion.
2
Gilman commenced this action both as administrator of the estate of
the decedent, Lisa Gail Wenig, and in his individual capacity. We refer to
Gilman in both capacities as the plaintiff.
3
General Statutes § 52-592 provides in relevant part: ‘‘(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 subsec-
tion (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. . . .’’
4
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 administra-
tor 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. . . .’’
5
The plaintiff was appointed as the administrator of the decedent’s estate
on May 23, 2018.
6
The second and fourth counts, which asserted claims against Shames,
were withdrawn.
7
The plaintiff specifically alleged that, ‘‘[t]hroughout the course of [the
decedent’s] treatment by the defendant, the defendant provided her numer-
ous patient documents . . . [that] formed a contract which imposed obliga-
tions on the defendant to properly monitor her health and provide the
appropriate treatment.’’
8
Furthermore, it is undisputed that the June 9, 2016 notice of claim
constitutes the plaintiff’s sole attempt to request permission to bring an
action against the defendant. The plaintiff did not seek to provide the com-
missioner with notice of any claims he sought to bring in his capacity as
administrator of the decedent’s estate at a later date.
9
The court in Isaac found that, although ‘‘[t]he plaintiff alleged in the
complaint that she had been appointed administratrix of the decedent’s
estate on May 17, 1979 . . . [i]n 1982, she discovered that she had been
involved only in the transfer of survivorship property and had not been
named administratrix.’’ Isaac v. Mount Sinai Hospital, supra, 210 Conn. 723.
10
The plaintiff concedes that, without the applicability of § 52-592, his
claims for breach of contract and bystander emotional distress fail. Because
we conclude that § 52-592 does not govern the matter before us, these claims
necessarily fail. See Parnoff v. Mooney, 132 Conn. App. 512, 518, 35 A.3d
283 (2011).