DocketNumber: File 139065
Citation Numbers: 342 A.2d 65, 32 Conn. Super. Ct. 118, 32 Conn. Supp. 118, 1975 Conn. Super. LEXIS 152
Judges: McCarthy
Filed Date: 5/1/1975
Status: Precedential
Modified Date: 11/3/2024
The defendant Griffin Hospital moves for summary judgment, claiming that the *Page 119 action is barred by the Statute of Limitations. The plaintiff's suit is based on negligence in allegedly leaving a surgical needle in her abdomen. The hospital's affidavit states that the alleged negligence occurred in 1964, when an operation was performed on the plaintiff. The plaintiff claims in her counter affidavit that operations were performed on her at the hospital in 1963, 1964, and 1967.
The hospital claims that there is no genuine issue of material fact, since all surgery still ended in 1967, and that the action is barred by the statute, regardless of which date is considered.
The plaintiff contends that there was a continuing tort, inasmuch as there was a failure to warn, under the doctrine of Handler v. Remington Arms Co.,
The doctrine of continuing negligence, first enunciated in Handler, supra, 321, held that a failure to warn of a dangerous condition (a defective bullet) is a "claim of conduct continuing to the time of injury. When the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed." In Boains v. Lasar Mfg. Co.,
Medical malpractice cases, in which a foreign object is left in a patient's body, present an even *Page 120
more compelling situation for the application of that doctrine. Many jurisdictions have abandoned the older approach of literal application of the statute. Prosser, Torts (4th Ed.) § 30, p. 144. An examination of the policy behind the statute makes it clear that the better reasoned approach is to measure the running of the statute from the date of discovery of the malpractice, unless reasonable diligence would have uncovered it earlier. Flanagan
v. Mount Eden General Hospital,
A literal reading of General Statutes §
The motion of the defendant Griffin Hospital for summary judgment is accordingly denied.