Caron v. Adams

• Decision Date: 08 March 1994
• Docket Number: No. 11664,11664
• Citation: 638 A.2d 1073,33 Conn.App. 673
• Court: Connecticut Court of Appeals
• Parties: Joseph CARON v. Frederick G. ADAMS, Commissioner of Health Services, et al.

Page 1073

638 A.2d 1073

33 Conn.App. 673

Joseph CARON v. Frederick G. ADAMS, Commissioner of Health Services, et al.

No. 11664.

Appellate Court of Connecticut.

Argued Oct. 5, 1993.

Decided March 8, 1994.

George E. Mendillo, Waterbury, for appellant (plaintiff).

Robert E. Kiley, with whom was Lois B. Tanzer, Hartford, for appellee (defendant Newington Children's Hosp.).

Elizabeth A. O'Dea, Asst. Atty. Gen., with whom were Thomas J. Ring, Asst. Atty. Gen., and, on the brief, Richard Blumenthal, Atty. Gen., and Richard J. Lynch, Asst. Atty. Gen., for appellee (defendant commissioner of health services).

Before DUPONT, C.J., and FOTI and HEIMAN, JJ.

FOTI, Judge.

The plaintiff appeals from the judgment rendered for the defendants, following the granting of a motion for judgment notwithstanding the verdict filed by the defendant Newington Children's Hospital (hospital), and the granting of a motion to dismiss filed by the defendant Frederick G. Adams, commissioner of health services (health services). The plaintiff initially brought this action against the named defendant, the defendant hospital and the department of children and youth services (DCYS) (now the department of children and families). ¹ The plaintiff alleged, inter alia, that the hospital failed to obtain consent, informed or otherwise, from his legal guardian, the commissioner of DCYS. The plaintiff alleged that health services breached its statutory duties to provide services to crippled children. The claims against the hospital were tried to a jury and the claims against health services were tried to the court.

During the trial, the defendant hospital orally moved for a directed verdict claiming that the action was barred by the statute of limitations. The court reserved decision. The jury rendered a verdict for the plaintiff in the amount of $500,000. The court granted the hospital's motion for judgment notwithstanding the verdict on the ground that the two year statute of limitations barred the plaintiff's action as a matter of law. The trial court filed a memorandum of decision on June 26, 1992, finding that the plaintiff and DCYS had to have discovered any harm by January, 1985, but did not commence the action until June 1, 1987. Thereafter, the trial court issued a separate memorandum of decision dated June 26, 1992, ordering the dismissal of the case against health services for failure to make out a prima facie case and because the case was barred by the statute of limitations.

The plaintiff appeals claiming that the trial court improperly (1) held that the plaintiff's cause of action was barred by the statute of limitations, (2) precluded the plaintiff from calling expert witnesses at trial, (3) dismissed the claim against health services without reaching the issue of whether health services may be held liable for the acts or omissions of the hospital, and (4) denied the plaintiff's application for relief from payment of fees, costs and expenses pursuant to Practice Book § 4017. We reverse in part and affirm in part.

The following facts are relevant to this appeal. The plaintiff, Joseph Andrew Caron, was born Maurice Joseph Tancreto on November 3, 1967. On January 16, 1968, he was adjudicated a neglected child and was committed to the custody of the commissioner of DCYS. He was placed in the foster care of Joseph and Johanna Caron, ² where he remained throughout his minority.

The plaintiff was diagnosed with scoliosis at age four and became a patient of the hospital. During the years that he was a patient, he was examined periodically by John Banta, a staff orthopedic surgeon at the hospital, in addition to other members of the hospital staff including psychologists. The plaintiff's curvature of the spine was treated with various brace treatments until he was twelve years old. The scoliosis was found to be responding well and brace treatment was discontinued in October, 1980. Thereafter, further examinations conducted by the hospital revealed a progression of the curvature of the spine. By August, 1983, the curvature had worsened to the point that surgery was deemed advisable.

From September, 1981, to February, 1984, Salvatore Luciano was the plaintiff's caseworker from DCYS. On October 26, 1983, a meeting was held with officials from DCYS, including Luciano, the hospital, the plaintiff, and Johanna Caron to discuss corrective surgery. Banta recommended surgical fusion of the spine which intended to correct the curvature by 50 percent and to prevent further progression. No decision as to a course of treatment was reached at the meeting. The plaintiff and his foster mother were to take the matter under advisement. Luciano testified that Banta had said at the meeting that surgery could not be attempted until the plaintiff achieved skeletal maturity. Banta denied having made such a statement.

In February, 1984, Paul Kukish, another DCYS caseworker, was appointed to the case. Kukish did not become aware that surgery had been proposed until September, 1984. On September 10, 1984, the plaintiff was admitted to the hospital for diagnostic evaluation. It was determined that the scoliosis had progressed to a critical point and surgery was again recommended. The plaintiff refused to submit to surgery because of the risks that he thought were involved. ³ He checked out of the hospital against medical advice on September 14, 1984. The plaintiff did not return to the hospital as a patient.

In October, 1984, a staff member of the hospital's child protection unit wrote to the clerk of the Superior Court requesting that a judge review the plaintiff's case. On October 24, 1984, and June 26, 1985, hearings were held in the Superior Court for Juvenile Matters. All pertinent parties were present including the plaintiff who was represented by an attorney in opposing the surgery. ⁴ After the first hearing, the plaintiff was ordered to visit Boston Children's Hospital for a second opinion. The diagnosis and recommendations of Boston Children's Hospital were substantially the same as those of the Newington hospital. Ultimately, the trial court refused to compel the plaintiff, then seventeen, ⁵ to undergo surgery against his will.

The plaintiff contended at the trial against the hospital that the hospital and health services were negligent in not ensuring the early treatment and correction of his scoliosis. In failing to do so, he claims that they allowed the curvature of his spine to progress to the point where it could not be fully corrected and partial correction could be accomplished only by surgery and at great risk to the plaintiff.

I

We deal first with the issue of the statute of limitations, which involves both defendants, and then take in turn the issues applicable to each defendant. The plaintiff first contends that the trial court improperly determined that his claims were barred by the statute of limitations pursuant to General Statutes § 52-584. ⁶ It is undisputed that § 52-584 applies to this case. "In Connecticut a cause of action accrues when a plaintiff suffers actionable harm. Catz v. Rubenstein, 201 Conn. 39, 43, 513 A.2d 98 (1986). Actionable harm occurs when the plaintiff discovers or should discover, through the exercise of reasonable care, that he or she has been injured and that the defendant's conduct caused such injury. Id.; see Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 (1987)." Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 521, 562 A.2d 1100 (1989). The trial court in this case found that the injury to the plaintiff should reasonably have been discovered by, at the latest, January, 1985. Because the plaintiff initiated suit on June 1, 1987, the trial court concluded that the suit was barred by the two year statute of limitations.

It is well settled in Connecticut that the statute of limitations applies with full force against infants. Lametta v. Connecticut Light & Power Co., 139 Conn. 218, 223, 92 A.2d 731 (1952); Lopez v. United Nurseries, Inc., 3 Conn.App. 602, 605, 490 A.2d 1027 (1985). It has long been the established practice that a minor may bring a civil action only through a guardian or next friend. Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970); Lametta v. Connecticut Light & Power Co., supra, 139 Conn. at 220, 92 A.2d 731. In addition, "[a]n infant ... cannot be presumed to know that legal redress is available for an injury caused by the negligence of another. Thus ... the knowledge of a parent or guardian that his or her child has suffered an actionable injury must be imputed to that child." Burns v. Hartford Hospital, 192 Conn. 451, 458 n. 4, 472 A.2d 1257 (1984).

The plaintiff in this case had been committed to the guardianship of the commissioner of DCYS pursuant to General Statutes § 17a-92. ⁷ Therefore, for statute of limitations purposes, the defendants argue that the knowledge of the plaintiff's guardian, DCYS, would generally be imputed to the plaintiff. However, "the purpose of providing representation is to ensure that the legal disability imposed will not undermine adequate protection of a ward's interest." Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 264, 398 A.2d 307 (1978). ⁸ "The law does not deprive a person adjudicated incompetent of access to the courts in order to seek redress; rather, provision is made to ensure that such interests are well represented. Kirwan v. State, 168 Conn. 498, 502, 363 A.2d 56 [1975]." Cottrell v. Connecticut Bank & Trust Co., supra, 175 Conn. at 261-62, 398 A.2d 307.

The DCYS guardianship is a guardianship of the person. ⁹ The plaintiff argues that personal injury damages are a property right, and, therefore, DCYS, as guardian of the person and not of the estate, ¹⁰ would not be able to bring a suit on behalf of the plaintiff. We need not decide this issue because, in this case, the interests of DCYS may have been adverse to those of the plaintiff. The plaintiff, in fact, sought redress for injury arising out...