Burns v. Hartford Hosp.

• Decision Date: 13 March 1984
• Citation: 192 Conn. 451,472 A.2d 1257
• Court: Connecticut Supreme Court
• Parties: Bryan BURNS v. HARTFORD HOSPITAL et al.

Page 1257

472 A.2d 1257

192 Conn. 451

Bryan BURNS v. HARTFORD HOSPITAL et al.

Supreme Court of Connecticut.

Argued Oct. 13, 1983.

Decided March 13, 1984.

David W. Skolnick, New Haven, with whom were Andrew R. Lubin, Fairfield, and, on the brief, Ivan M. Katz, New Haven, for the appellant (plaintiff).

James M. Tanski, Hartford, with whom were Lois B. Tanzer, Hartford, and, on the brief, M. Katherine Glassman, law student intern, for the appellee (named defendant).

Before SPEZIALE, C.J., and ARTHUR H. HEALEY, PARSKEY, SHEA and SPONZO, JJ.

SPEZIALE, Chief Justice.

This is an appeal from the trial court's order granting summary judgment for the defendants, Hartford Hospital and Dr. Ronald W. Cooke, on the ground that there was no genuine issue of material fact that the plaintiff's suit was barred by the statute of limitations, General Statutes § 52-584. Because we find that material facts concerning the statute of limitations were not in dispute, we find no error.

On November 1, 1978, Bryan Burns, a minor, by his mother and next friend Barbara Burns, filed suit against Hartford Hospital and Ronald W. Cooke, M.D. The complaint alleged that the defendants' malpractice had caused permanent injury to Bryan's leg; the plaintiff requested commensurate damages. Through pleadings and the deposition ¹ of Barbara Burns the plaintiff alleged the following facts: On October 23, 1975, Bryan, who was then two years old, was admitted to Hartford Hospital for treatment of injuries suffered in an automobile accident. His injuries were confined to the upper body and torso. During the course of his treatment Bryan's condition required that he be administered fluids intravenously. To accomplish this, hospital personnel made "cut downs" in his lower legs, through which intravenous tubes were inserted. Bryan remained in Hartford Hospital, confined to bed, throughout the treatment process.

About a week after he first entered the hospital, and while his original injuries were responding well to treatment, Bryan began to display symptoms of soreness in his left leg between the knee and the ankle, near the intravenous "cut down." The leg was visibly swollen and showed redness. Barbara Burns became aware of Bryan's pain when he refused to let her touch the leg. Bryan's physician, Dr. Cooke, initially diagnosed the problem as a hematoma. Shortly thereafter, however, the leg developed an abscess. About November 10, 1975, Dr. Cooke lanced the abscessed area and removed thirty to forty cubic centimeters of purulent fluid. After analyzing the fluid Dr. Cooke changed his diagnosis and determined that Bryan had suffered a streptococcus infection. He told Barbara Burns that the infection had probably reached the muscle and had possibly reached the bone as well. He ascribed blame for the infection to the use of contaminated intravenous tubes. After lancing Bryan's leg Dr. Cooke prescribed antibiotics to treat the infection.

Bryan was released from the hospital on November 16, 1975, but did not begin to walk again for at least a month. Bryan saw Dr. Cooke three times within a month of his release from the hospital for further treatment. On the last visit Dr. Cooke told Barbara Burns that Bryan's leg would heal fully with time; he scheduled no further appointments. From the time Bryan again began to walk Barbara Burns noticed that his gait was irregular, but she took no further medical or legal action in reliance on Dr. Cooke's prognostication of complete recovery.

During the following year and one-half Bryan's gait grew progressively worse and Barbara Burns noticed that the big toe of his left foot was growing improperly and the muscles in his left calf were not developing. In August, 1977, Barbara Burns took Bryan to another physician. After a series of visits to this physician and others, it was discovered that Bryan's disability was caused by a buildup of scar tissue in the calf which was suppressing proper muscle development.

On November 1, 1978, Bryan Burns filed suit alleging that Hartford Hospital and Dr. Cooke acted negligently in failing to diagnose accurately and treat properly the infection in Bryan's leg. On May 22, 1981, Dr. Cooke filed a motion for summary judgment on the ground that the applicable statute of limitations, General Statutes § 52-584, ² barred the plaintiff's suit. Hartford Hospital also filed a similar motion. On October 2, 1981, the trial court rendered judgment granting both defendants' motions for summary judgment after concluding that there was no issue of material fact in dispute concerning when Barbara Burns, Bryan's mother and next friend, was first aware of Bryan's injury. It found that she had discovered the injury on November 10, 1975, when Dr. Cooke diagnosed Bryan's ailment as an infection caused by contaminated intravenous tubes. The trial court then looked to the statute of limitations for malpractice actions, § 52-584, which provides in relevant part that any such suit "shall 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 trial court then determined that because Bryan's injury occurred in November, 1975, and because Barbara Burns became aware of the injury on November 10, 1975, the statute of limitations barred any suit for damages arising from that injury brought more than two years later. Accordingly, the court granted both defendants' motions for summary judgment. The plaintiff appealed from the judgment for Hartford Hospital and Dr. Cooke; the only question before us, however, is whether the trial court erred in granting summary judgment in favor of Hartford Hospital. ³ We find no error.

"A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377-78, 260 A.2d 596 (1969)." Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983). See Herman v. Endriss, 187 Conn. 374, 446 A.2d 9 (1982). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. Bartha v. Waterbury House Wrecking Co., supra, 190 Conn. at 11-12, 459 A.2d 115; Farrell v. Farrell, 182 Conn. 34, 38, 438 A.2d 415 (1980); Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 5, 357 A.2d 484 (1975). It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. "Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 380." Bartha v. Waterbury House Wrecking Co., supra, 190 Conn. at 12, 459 A.2d 115. " 'The movant has the burden of showing the non-existence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist.' " Kasowitz v. Mutual Construction Co., 154 Conn. 607, 613, 228 A.2d 149 (1967), quoting Boyce v. Merchants Fire Ins. Co., 204 F.Supp. 311, 314 (D.Conn.1962); see Farrell v. Farrell, supra, 182 Conn. at 39, 438 A.2d 415; Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 490, 280 A.2d 359 (1971); Hartmann v. Smith, 158 Conn. 613, 614, 259 A.2d 645 (1969).

Here, the defendant Hartford Hospital supported its motion for summary judgment with excerpts from a sworn deposition of Barbara Burns, given on November 5, 1979. It claimed that her deposition showed clearly that Barbara Burns had discovered Bryan's injury more than two years before instituting suit and that, because that issue was not in dispute, the court should find the suit barred by the statute of limitations and award summary judgment for Hartford Hospital. The plaintiff filed a counter-affidavit in opposition claiming that Barbara Burns had not discovered Bryan's injury until August 1, 1977. Thus, the dispositive issue on appeal is whether Barbara Burns' deposition demonstrates that there is no genuine issue of material fact in dispute as to when she discovered Bryan's injury.

In her deposition Barbara Burns stated that she first noticed the swelling and discoloration in Bryan's leg about November 10, 1975. By about November 10, 1975, she became fully aware not only of Bryan's injury but also of its cause. She testified in her deposition that on or about November 10, Dr. Cooke told her that the leg was infected and that the infection was caused by contaminated intravenous tubes that hospital staff had placed in the leg:

"Q. [Attorney for Dr. Cooke] When was Bryan's leg lanced?

"A. [Barbara Burns] Around the 10th, I believe it was.

"Q. Around November 10?

"A. Yes.

"Q. And were you at the hospital that day?

"A. Yes.

"Q. Did you talk to Dr. Cooke that day, that you recall?

"A. After the lancing?

"Q. Either before or after.

"A. After the lancing.

"Q. So, what did he say to you?

"A. That he found infection in the leg and that there was muscle infection and possible bone infection.

"Q. And this was November 10?

"A. Yes.

* * *

* * *

"Q. [Attorney for Hartford Hospital] Now, around the 10th or so of November, you were informed of this change that now it was thought that it was an infection rather than a hematoma and that Dr. Cooke was going to lance it or had lanced it already?

"A. [Barbara Burns] Yes.

"Q. Now, at that time, did you ever ask Dr. Cooke how the infection came about?

"A. Yes.

"Q. And what did Dr. Cooke tell you?

"A. He told us it was a streptococcus infection and that it probably became infected from the intravenous tubes.

"Q. And when did...