Martinelli v. Fusi, No. 17988.

Citation290 Conn. 347,963 A.2d 640
Decision Date10 February 2009
Docket NumberNo. 17988.
CourtSupreme Court of Connecticut
PartiesPaola MARTINELLI v. Stefano FUSI et al.

Richard L. Grant, with whom, on the brief, was Anthony A. Piazza, Stamford, for the appellant (plaintiff).

Michael G. Rigg, with whom was Hilary Fisher Nelson, Hartford, for the appellees (defendant Ronald H. Delfini et al.).

NORCOTT, PALMER, VERTEFEUILLE, ZARELLA and SCHALLER, Js.

NORCOTT, J.

In this appeal, we consider whether the continuous course of conduct doctrine or the continuing treatment doctrine tolls the three year period of repose beyond the date on which a patient terminated the physician-patient relationship, when the physician was aware of test results that revealed the patient's need for follow-up treatment, but failed to notify the patient of those results because he did not subjectively believe that they revealed a need for further treatment. The plaintiff, Paola Martinelli, brought this action against the defendant Ronald H. Delfini,1 alleging claims of dental malpractice and lack of informed consent. The plaintiff appeals2 from the trial court's grant of the defendant's motion for summary judgment on the ground that the plaintiff's claims were not timely filed within the three year period of repose under General Statutes § 52-584.3 On appeal, the plaintiff claims that the trial court improperly granted the defendant's motion for summary judgment because there were genuine issues of material fact as to whether the period of repose was tolled by both the continuous course of conduct and the continuing treatment doctrines. We disagree, and accordingly, we affirm the judgment of the trial court.

The record, viewed in the light most favorable to the nonmoving plaintiff for purposes of reviewing the trial court's grant of summary judgment, reveals the following facts and procedural history. The plaintiff has suffered through a long history of dental difficulties, originally stemming from a childhood condition diagnosed as juvenile periodontitis. As a result of that condition, the plaintiff lost all of her teeth in 1977, which forced her to use dentures thereafter. Over the course of the next several years, the plaintiff experienced severe bone degradation in the bony ridges of her maxilla and mandible, to the point that they no longer could support her dentures.

The plaintiff initially consulted with Stefano Fusi, a plastic surgeon; see footnote 1 of this opinion; and the defendant, a periodontist, regarding her condition in late 1992. Upon his initial examination of the plaintiff, the defendant determined that her deteriorating maxilla and mandible no longer could support her dentures, and he recommended surgical reconstruction to place implants into the plaintiff's maxilla. The defendant and Fusi performed the recommended surgery on December 28, 1993. Because of complications from that initial surgery, however, the plaintiff was required to undergo several follow-up surgical procedures, which were performed by the defendant and/or Fusi, on July 17, 1995, October 3, 1995, October 11, 1995, January 22, 1996, September 25, 1997, and March 26, 1999.

Following the last of these procedures, the plaintiff scheduled an appointment with the defendant in August, 1999, to discuss the continuing pain that she had been experiencing in her mouth and face. The defendant recommended that the plaintiff undergo a computerized tomography (CT) scan, which was performed on August 27, 1999. The CT scan revealed a perforation of the plaintiff's maxilla, a free floating piece of grafted bone in the left maxillary sinus, and sinus disease. The defendant received a copy of the radiology report detailing the results of the CT scan on August 30, 1999, but he did not discuss those results with the plaintiff because he believed that they did not reveal any condition that he would treat. The plaintiff subsequently consulted with the defendant regarding her condition on February 25, 2000, at which time the defendant again failed to notify her of the results of the CT scan or to discuss any possible follow-up treatment. In the wake of that final appointment, the plaintiff cancelled her next appointment with the defendant and terminated their relationship because of the multiple unsuccessful surgical procedures and the defendant's lack of responsiveness to her complaints. The plaintiff did not provide the defendant with any formal notice that she was terminating the relationship, but, rather, simply stopped seeing him. The defendant did not have any further contact with the plaintiff or any direct involvement in the plaintiff's treatment thereafter, although he continued to consult with Fusi regarding her implants until May 7, 2002.

After terminating her relationship with the defendant, the plaintiff consulted with several other physicians regarding her condition between February, 2000, and August, 2002, including Ronald Montano, a dentist. The plaintiff also sought continued treatment from Fusi, who performed his final surgery on the plaintiff on May 7, 2002. Both Montano and Fusi had copies of the CT scan, although neither ever told the plaintiff about the results of the CT scan or discussed possible treatment options based on those results. In June, 2002, the plaintiff consulted, however, with Neil Gordon, a physician, who for the first time alerted her to the results of the CT scan. The plaintiff thereafter consulted with another physician, Peter Constantino, who ordered another CT scan on August 9, 2002, which revealed little or no change in the plaintiff's condition from that which was revealed by the original CT scan.

The plaintiff commenced the present action on March 23, 2004, more than four years after her last meeting with the defendant, but less than two years after she first learned of the results of the CT scan. The plaintiff subsequently filed her second amended complaint, which is the operative pleading for the purposes of this appeal, on September 30, 2005, in which she alleges claims of, inter alia, dental malpractice and lack of informed consent against the defendant with respect to the multiple unsuccessful surgeries. The defendant filed an answer and special defense on March 30, 2006, denying liability and asserting that the plaintiff's claims are barred by the two year statute of limitations and/or the three year period of repose under § 52-584.

The defendant thereafter filed a motion for summary judgment, asserting that the plaintiff's claims are time barred under § 52-584. The trial court granted the defendant's motion, concluding that there were no genuine issues of material fact that could justify tolling the period of repose under either the continuous course of conduct or the continuing treatment doctrines, and that, as a consequence, the plaintiff's claims were time barred because they were filed more than three years after the defendant's allegedly negligent acts had occurred. Specifically, the court concluded with respect to the continuous course of conduct doctrine that there was no special relationship between the parties after February 25, 2000, and that, because the plaintiff "failed to introduce any evidence that indicates [that the defendant] had a concern about the pathology revealed by the August, 1999 CT scan or that he had actual knowledge the plaintiff was susceptible to an increased risk deriving from the August, 1999 CT scan ... we are unable to impose a continuing duty on [him] related to the alleged wrong herein." Additionally, the court concluded that the continuing treatment doctrine "may have tolled the commencement of the statute of repose ... until February [25], 2000," but "cannot toll the statute of repose in this matter beyond February [25], 2000, the date of the final consultation between the plaintiff and [the defendant]." The plaintiff subsequently filed a motion to reargue, claiming, inter alia,4 that new evidence had been discovered regarding the defendant's continued involvement in her treatment after February 25, 2000, namely, that the defendant had continued to consult with Fusi regarding her condition until May, 2002. Without substantial discussion, the trial court partially granted the plaintiff's motion, but denied the relief requested therein. This appeal followed.

On appeal, the plaintiff claims that the trial court improperly concluded that there were no genuine issues of material fact that could support the application of either the continuous course of conduct doctrine or the continuing treatment doctrine to toll the period of repose. Specifically, the plaintiff claims that: the defendant was aware of the results of the CT scan; he was under an ongoing duty to warn the plaintiff of those results and to recommend any necessary follow-up treatment; and his continuing breach of that duty triggered the continuous course of conduct doctrine and tolled the statute of repose until the plaintiff learned of those results in August, 2002. The plaintiff further claims that the continuing treatment doctrine tolled the period of repose because she reasonably could have anticipated that the defendant, who ordered the CT scan and received a report detailing the results of that CT scan, would communicate those results to her and recommend further treatment options within that time frame. Thus, the plaintiff contends that her claims are not time barred because the complaint was filed on March 23, 2004, less than two years from the date on which the period of repose began to run once either doctrine is applied. We address each claim in turn.

I

As a preliminary matter, we set forth "the well settled standard of review for reviewing a trial court's decision to grant a motion for summary judgment. Practice 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...

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