Blanchette v. Barrett

Decision Date23 March 1994
Docket NumberNo. 14745,14745
Citation640 A.2d 74,229 Conn. 256
CourtConnecticut Supreme Court
PartiesEvelyn E. BLANCHETTE et al. v. Frederick C. BARRETT.

Allan B. Taylor, with whom were Ernest J. Mattei and, on the brief, M. Katherine Bertini, Hartford, for appellant (defendant).

Peter J. Bartinik, with whom was Shelley M. Weiss, Groton, for appellees (plaintiffs).

Michael P. Koskoff, Bridgeport, filed a brief for CT Trial Lawyers Ass'n as amicus curiae.

Phillip J. O'Connor, Hartford, filed a brief for CT Defense Lawyers Ass'n as amicus curiae.

Before PETERS, C.J., and BORDEN, NORCOTT, KATZ and PALMER, JJ.

PETERS, Chief Justice.

The principal issue in this medical malpractice case is whether the "continuous treatment" or "continuing course of conduct" doctrine tolls the repose section of the statute of limitations, General Statutes § 52- 584, 1 which disallows any action brought more than three years from the date of a physician's alleged misconduct. The named plaintiff, Evelyn E. Blanchette, 2 filed a complaint charging the defendant, Frederick C. Barrett, a physician, with having negligently failed to exercise reasonable medical care in his diagnosis and treatment of her breast condition, which was subsequently found to have been cancerous. 3 The defendant denied the allegations in the complaint and raised two special defenses: the plaintiff's contributory negligence and the expiration of the statute of limitations. The case was tried to a jury, which found for the plaintiff on her allegation of negligence and for Ronald Blanchette, the plaintiff's husband, on his derivative claim for loss of consortium. 4 The trial court denied the defendant's motions to set aside the verdict and for a new trial, and for judgment notwithstanding the verdict, and rendered judgment for the plaintiff. The defendant filed a timely appeal to the Appellate Court, which we transferred to this court pursuant to General Statutes § 51-199(c) and Practice Book § 4023. We reverse the judgment of the trial court and order a new trial.

The undisputed facts are as follows. The defendant became the plaintiff's family physician in 1973, and saw her professionally at various intervals between 1973 and 1985. These professional consultations routinely included a breast examination. The plaintiff's last professional consultation with the defendant took place on January 10, 1985. In accordance with the defendant's direction at that consultation, the plaintiff had a mammogram. On January 15, 1985, the defendant received the mammogram report, which was negative, and so informed the plaintiff.

In May, 1987, concerned about the condition of her breast, the plaintiff called the defendant's office to make an appointment to see him. Because the defendant was unavailable, someone in the defendant's office referred the plaintiff to Paul Deutsch, another family practitioner. Deutsch examined the plaintiff on May 19, 1987, discovered a mass in the plaintiff's left breast, and referred the plaintiff to a surgeon, first for a biopsy and shortly thereafter for surgery, which confirmed the presence of breast cancer. The plaintiff commenced her action against the defendant by complaint dated May 17, 1989. Further facts will be detailed as relevant.

The defendant challenges the validity of the judgment rendered against him on numerous grounds. First, he maintains that the trial court improperly denied his motions to set aside the verdict and for judgment notwithstanding the verdict, "because the jury could not have reasonably and legally concluded that [the] plaintiff's action was brought within three years of the allegedly tortious conduct." Second, he claims that the trial court improperly instructed the jury on the continuing course of conduct doctrine when it stated that the defendant had a duty to notify or warn the plaintiff of a negligent misdiagnosis. Third, he contends that the trial court's instructions, on numerous occasions, misstated the date of the plaintiff's last personal consultation with the defendant, and that such misstatements "misled the jury to believe that the defendant's alleged negligence [had] occurred in 1987 rather than 1985." Fourth, he argues that, in highlighting the statistical life expectancy table introduced by the plaintiff, the trial court misled the jury to believe that the plaintiff, in 1985, had the life expectancy of an average, normal, healthy white female. Fifth, he maintains that the trial court abused its discretion when it submitted an interrogatory to the jury that called for a conclusion of law.

We disagree with the defendant's contention that the trial court could not have found sufficient evidence to uphold the jury's verdict, but we agree that the trial court misstated the continuing course of conduct doctrine and that this error in the jury instructions gave the jury inadequate guidance, as a matter of law, to decide whether the plaintiff's action had been brought within the three year period allowed by the repose section of the statute of limitations, § 52-584. We therefore reverse the judgment in the plaintiff's favor and order a new trial. 5 This disposition makes it unnecessary for us to consider the defendant's other grounds for reversal of the judgment against him. 6

I

The defendant claims that the trial court improperly denied his motions to set aside the verdict and for a new trial, and for judgment notwithstanding the verdict. He contends that the plaintiff's lawsuit, filed on May 17, 1989, was barred by the repose section of the statute of limitations, § 52-584. That statute provides that an action for the negligence of a physician must be brought "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...." The statute's repose section, however, imposes a further time limitation: "except that no such action may be brought more than three years from the date of the act or omission complained of...." General Statutes § 52-584. The defendant maintains that the three year period of the repose section began to run on January 10, 1985, 7 the last date on which the plaintiff consulted him personally. From this predicate, the defendant posits that he cannot be held liable for any alleged professional omissions thereafter. The defendant recognizes that, under some circumstances, the continuous treatment doctrine or the continuing course of conduct doctrine serves to toll the statute of limitations, but denies the applicability of either doctrine to his professional relationship with the plaintiff.

The crux of the defendant's contention is that he engaged in no subsequent wrongful conduct with respect to the plaintiff after January 10, 1985. Because wrongful conduct may include acts of omission as well as affirmative acts of misconduct, we disagree that the evidence supports his contention.

We undertake only limited appellate review of a trial court's denial of a motion for judgment notwithstanding the verdict and of a motion to set aside the verdict. In each case, we accord great deference to the trial court's superior opportunity to view the trial in its entirety. "In reviewing the decision of the trial court, we consider the evidence in the light most favorable to the sustaining of the verdict...." (Citations omitted; internal quotation marks omitted.) Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 57, 578 A.2d 1054 (1990); Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 555, 316 A.2d 394 (1972). Our function is "to determine whether the trial court abused its discretion in denying [either] motion...." Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666 (1988); Skrzypiec v. Noonan, 228 Conn. 1, 11, 633 A.2d 716 (1993); Ginsberg v. Fusaro, 225 Conn. 420, 425, 623 A.2d 1014 (1993); State v. Hammond, 221 Conn. 264, 270, 604 A.2d 793 (1992). "The trial court's [denial of each motion] is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness...." (Citations omitted.) Skrzypiec v. Noonan, supra, 228 Conn. at 10, 633 A.2d 716; Ginsberg v. Fusaro, supra, 225 Conn. at 430-31, 623 A.2d 1014; Bartholomew v. Schweizer, 217 Conn. 671, 687, 587 A.2d 1014 (1991); Mather v. Griffin Hospital, supra, 207 Conn. at 139, 540 A.2d 666.

With these principles in mind, we address the defendant's claim that the three year, repose section of § 52-584 had expired prior to the plaintiff's commencement of this medical malpractice lawsuit. Concededly, the relevant "date of the act or omission complained of," as that phrase is used in § 52-584, is "the date when the negligent conduct of the defendant occurs and ... not the date when the plaintiff first sustains damage." Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 173, 127 A.2d 814 (1956) (interpreting General Statutes [1949 Rev.] § 8324, predecessor to § 52-584); Prokolkin v. General Motors Corp., 170 Conn. 289, 294-97, 365 A.2d 1180 (1976) (utilizing interpretation of § 52-584 to construe same language in General Statutes § 52-577). In the medical malpractice context, we have specifically determined that a lawsuit commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations, § 52-584, regardless of whether the plaintiff had not or, in the exercise of care, could not reasonably have discovered the nature of the injuries within that time period. Stein v. Katz, 213 Conn. 282, 285, 567 A.2d 1183 (1989); Catz v. Rubenstein, 201 Conn. 39, 49-50, 513 A.2d 98 (1986); McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 334, 471 A.2d 646 (1984). We have also recognized, however, that the statute of limitations, in the proper circumstances, may be tolled under the continuous treatment or the continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or...

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