DocketNumber: No. 31 73 86
Citation Numbers: 1998 Conn. Super. Ct. 5840, 22 Conn. L. Rptr. 194
Judges: RADCLIFFE, J.
Filed Date: 5/4/1998
Status: Non-Precedential
Modified Date: 4/17/2021
Suit was instituted prior to the death of the decedent, against Associated Internists of Danbury, P.C. and Dr. Albert Casazza, returnable July 12, 1994.
The action commenced by the decedent claimed medical negligence, in that the defendants failed to exercise the degree of care and skill ordinarily and customarily used by physicians specializing in the fields of internal medicine and hematology.
Anton Holzmaier died on August 7, 1994, and his wife was substituted as the party plaintiff on December 20, 1994. The right to recover damages pursuant to §
On July 12, 1996, the plaintiff filed, pursuant to §
On July 19, 1996, the plaintiff filed a motion to cite in as additional defendants, Dr. Jonathan Gordon and Dr. Bernard Joseph Meehan. Service was made on Dr. Gordon on August 5, 1996.
On September 17, 1997, the defendant, Dr. Jonathan Gordon, filed an amended special defense claiming that the plaintiff's cause of action was barred by the statute of limitations, citing both §
The defendant, Dr. Gordon, now moves for summary judgment, both as to count four of the plaintiff's amended complaint, and count eight, which contains a loss of consortium allegation on behalf of the plaintiff administrator. He claims that these counts are time barred under the applicable statute of limitations.
The plaintiff claims in count four of the amended complaint dated May 14, 1997, that on or about June 4, 1991, Dr. Gordon undertook continuous care, treatment, monitoring and supervision of the decedent, Anton Holzmaier.
The complaint further alleges that Dr. Gordon was the physician who read and interpreted a chest X-ray of the decedent on June 4, 1991, a fact the defendant does not contest.
In an uncontradicted affidavit, signed February 18, 1998, Dr. Gordon acknowledges reviewing the X-rays of Anton Holzmaier on June 4, 1991.
Furthermore, in both the affidavit and a deposition (Exhibit L of motion for summary judgment), Dr. Gordon states that between June 4, 1991 and June of 1993, when lung cancer was first diagnosed, he did not examine the decedent, nor read X-rays which were taken on June 11, 1992.
The only professional service provided by Dr. Gordon to the decedent prior to June of 1993, when the cancer was diagnosed, involved reading and interpreting the X-rays on June 4, 1991.
In opposing the motion for summary judgment, the plaintiff initially maintains that §
She also maintains that a question of fact exists as to whether the continuing course of conduct doctrine applies to this case, thus tolling the statute of limitations.
In passing upon a motion for summary judgment, the trial court is limited to deciding whether a genuine issue of material fact exists. Batick v. Seymour,
The moving party must show that it is quite clear what the truth is, as to the existence of any genuine issue of material fact. Yanow v. Teal Industries, Inc.,
Summary judgment may be granted where a claim is barred by the applicable statute of limitations. Doty v. Mucci,
Connecticut courts have recognized the continuous treatment doctrine, first announced in Giambozi v. Peters,
Malpractice of a physician may be applied to a single act of the physician or surgeon. When the injury is complete at the time of the act, the statute of limitations begins to run when the breach of a duty or deviation from the standard of care occurs. When, however, injurious consequences arise from a course of treatment, the statute begins to run on the date when treatment is terminated. Blanchette v. Barrett,
If there is nothing more to be done by the physician as to the particular injury or malady which he was engaged to treat, or if he ceases to attend to the patient, the treatment is said to have ceased without any formality. Blanchette v. Barrett, supra, 275.
Because there is no indication of any activity by Dr. Gordon which could be construed as treatment between June 4, 1991 and the date the cancerous condition was first discovered in 1993, the continuing treatment doctrine can not be employed to aid the plaintiff.
There is no question that Dr. Gordon's only activity was a single reading of X-rays, without further treatment of any kind.
The reading of an X-ray by a radiologist is a single, one-time CT Page 5844 event. White v. Bridgeport Radiology Assoc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 259604 10 CONN. L. RPTR. 229 (September 28, 1993) (McKeever, J.).
Turning first to the defendant's claim that §
No action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . or by malpractice of a physician. . . 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 discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of. . . .
The plaintiff claims that the applicable statute is §
Section
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.
Section
At the time of his death, on August 7, 1994, Anton Holzmaier could not have initiated an action against Dr. Gordon under §
A statute of limitations or statute of repose is designed to prevent enforcement of stale claims or fraudulent claims after the lapse of a reasonable period of time, and to aid in the search for truth, which could be impaired by dimmed memories, the disappearance of witnesses or other factors beyond the control of the litigants. Ecker v. West Hartford,
The General Assembly is justified in establishing a period that runs from the date of the act or omission complained of, even though on that date no person has sustained damage, and no cause of action has come into existence. Vilcinskas v. Sears,Roebuck Co.,
Therefore, the question presented is whether the estate of Anton Holzmaier may assert a claim for damages under §
At common law, no cause of action may be maintained for damages resulting form the death of a human being. Grody v. Tulin,
Under Connecticut's wrongful death statute, §
The cause of action authorized by §
Because the decedent could not maintain an action under the CT Page 5846 period of repose applicable to §
Although the determination that §
Since the date of the "act or omission complained of" occurred on June 4, 1991, and the continuing treatment doctrine does not apply, suit was not commenced within five years, as required by the repose provision of §
A petition to extend the statute of limitations pursuant to § 52-109a(b) was not filed until July 12, 1996, more than five years after June 4, 1991. The filing of a petition under §
Therefore, even assuming that the provisions of §
The defendant's motion for summary judgment as to counts four and eight of the plaintiff's complaint is GRANTED.
Radcliffe, J.
Foran v. Carangelo , 153 Conn. 356 ( 1966 )
Yanow v. Teal Industries, Inc. , 178 Conn. 262 ( 1979 )
Batick v. Seymour , 186 Conn. 632 ( 1982 )
United Oil Co. v. Urban Redevelopment Commission , 158 Conn. 364 ( 1969 )
Giambozi v. Peters , 127 Conn. 380 ( 1940 )
Nolan v. Morelli , 154 Conn. 432 ( 1967 )
Vilcinskas v. Sears, Roebuck & Co. , 144 Conn. 170 ( 1956 )