Camposano v. Claiborn

• Court: Connecticut Circuit Court
• Writing for the Court: WRIGHT
• Citation: Camposano v. Claiborn, 2 Conn.Cir.Ct. 135, 196 A.2d 129 (Conn. Cir. Ct. 1963)
• Decision Date: 17 May 1963
• Docket Number: No. CV,CV
• Parties: Eugene CAMPOSANO v. Louis CLAIBORN. 6-613-1304.

Page 129

196 A.2d 129

2 Conn.Cir.Ct. 135

Eugene CAMPOSANO v. Louis CLAIBORN.

No. CV 6-613-1304.

Circuit Court of Connecticut, Sixth Circuit.

May 17, 1963.

Wilbur Land, New Haven, for plaintiff.

Gumbart, Corbin, Tyler & Cooper, New Haven, for defendant.

WRIGHT, Judge.

As the defendant states in his brief, 'the verdict having been rendered on conflicting evidence, the sole issue raised by the defendant's motion is whether the action was barred by the Statute of Limitations governing malpractice (Sec. 52-584) or the three year statute of limitations governing oral contracts (Sec. 52-581).'

After the claim of fraud or misrepresentation had been removed from the case by a ruling of the court, the sole remaining claim on behalf of the plaintiff was a claim based upon an alleged contract by the defendant doctor whereby he assured or warranted that a specific result would eventuate from the operation, namely, hairline scars of a minor nature, whereas disfiguring scars of a major nature actually resulted. In essence, the defendant's claim is that all actions against a physician arising out of an operation are included within the general term of 'malpractice.'

In its charge to the jury, the court ruled that the six-year Statute of Limitations (§ 52-576) was the applicable statute, and that the 'malpractice' statute (§ 52-584) did not apply. In reaching this conclusion, the court relied, and still relies, upon the case of Perlstein v. Westport Sanitarium Co., 11 Conn.Sup. 180, 182. In that decision, Judge O'Sullivan said: 'The statute, however, is not applicable to an action based on either breach of contract or fraud. It refers entirely to malpractice, which is a form of negligence.'

The question then arises as to whether the three-year contracts statute (§ 52-581) or the six-year statute (§ 52-576) applies. On this point the court has relied upon Kennedy v. Johns-Manville Sales Corporation, 135 Conn. 176, 62 A.2d 771. That case held (135 Conn. p. 179, 62 A.2d pp. 772-773) that the three-year statute only applies to executory contracts, whereas the six-year statute applies to executed contracts. No claim was made in the complaint, nor was there any offer of proof, to the effect that the defendant doctor did not perform a proper operation. The plaintiff relies solely upon a claim of a warranty or assurance that a certain result would be achieved.

The term 'malpractice,' on the other hand, presupposes some improper conduct in the treatment or operative skill. In 54 C.J.S. 1111, we find the...