Catz v. Rubenstein

• Decision Date: 12 August 1986
• Docket Number: No. 12737,12737
• Citation: 513 A.2d 98,201 Conn. 39
• Court: Connecticut Supreme Court
• Parties: Harold CATZ, Executor (ESTATE of Elaine S. FOSTER), et al. v. Stephen R. RUBENSTEIN.

Page 98

513 A.2d 98

201 Conn. 39

Harold CATZ, Executor (ESTATE of Elaine S. FOSTER), et al. v. Stephen R. RUBENSTEIN.

No. 12737.

Supreme Court of Connecticut.

Argued May 8, 1986.

Decided Aug. 12, 1986.

Donald McPartland, with whom, on brief, was William J. Secor, Jr., Waterbury for appellants (plaintiffs).

Peter J. Ottomano, with whom, on brief, was Thomas L. Brayton, Waterbury for appellee (defendant).

Before HEALEY, SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

CALLAHAN, Associate Justice.

This is a medical malpractice action commenced June 11, 1982, in which the trial court granted the defendant's motion for summary judgment on the ground that, as a matter of law, the plaintiffs' suit was barred by the two year statute of limitations provided by General Statutes § 52-584. ¹ The plaintiffs have appealed, claiming that, even if the defendant's affidavit and the other documents submitted in support of his motion were credited, there still existed a genuine issue of material fact as to when the plaintiffs' decedent discovered or in the exercise of reasonable care should have discovered her "injury." The plaintiffs did not file a counteraffidavit.

The documentation submitted in connection with the defendant's motion for summary judgment established the following facts which are essentially undisputed: After she had discovered a lump in her left breast in late July, 1979, the plaintiffs' decedent, Elaine S. Foster, consulted the defendant, Stephen R. Rubenstein, a physician who practiced general internal medicine. The defendant examined Foster, palpated the lump and ordered a mammogram. In early August, 1979, the defendant informed Foster that the mammogram was negative for cancer, that she merely had a tendency toward cysts, and that it was nothing to worry about. In January, 1980, after she discovered another lump, this time in the area of the left axilla, Foster spoke to the defendant on the telephone concerning her condition. On that occasion the defendant told her she had a propensity to fatty tissue, that he did not think it was anything serious, and there was no cause for concern. The lump grew larger, however, and in April, 1980, Foster again contacted the defendant. On April 21, 1980, he examined her for the second time and ordered another mammogram. This mammogram indicated a malignancy which was confirmed on May 1, 1980, when Massoud Marjani, a surgeon to whom Foster had been referred, performed a left modified radical mastectomy. Despite further treatment, the cancer spread to other parts of her body and Foster died of the disease on July 27, 1984. This action was commenced on June 11, 1982, and the present plaintiffs, coexecutors of her estate, were substituted as plaintiffs on October 22, 1984. The plaintiffs concede that Foster was aware that she had cancer no later than May 1, 1980.

The plaintiffs claim that, during the period of July, 1979, through April, 1980, the defendant negligently failed to prescribe or recommend further diagnostic tests or treatment for Foster and negligently failed to obtain the opinion of or refer her to a physician who specialized in the recognition and treatment of potential malignancies. The defendant contends that, even if that is so, Foster discovered her "injury," which he maintains was her cancerous condition, by May 1, 1980, and that her suit, which was not commenced until June 11, 1982, is barred by General Statutes § 52-584.

The plaintiffs maintain, however, that all of the information available to Foster in May, 1980, indicated and led her to believe that the cancer, confirmed by the operation on May 1, 1980, was a new growth or mass, not related to the condition for which she had previously been examined and diagnosed by Rubenstein in July and August of 1979. The plaintiffs claim that Foster was justified in her belief because the defendant told her, in August, 1979, that there was no evidence of cancer; that Marjani stated in his discharge summary, dated May 11, 1980, that the lump in her left breast "was a rather rapidly growing tumor, since a year ago, or last August, the examination was completely negative"; and Stephen Stein, a radiologist, who took the second mammogram, stated in his report dated April 22, 1980, that the growth discovered was a "[n]ew dominant mass."

The plaintiffs argue that there was no evidence submitted with the defendant's motion for summary judgment and no facts established that showed when Foster discovered or in the exercise of reasonable care should have discovered that she had cancer in her left breast when she was initially examined and diagnosed by Rubenstein or that her condition at that time was related to the cancer discovered on May 1, 1980. The plaintiffs claim, on appeal, that Foster first became aware of that possibility when she was advised to that effect by Horace Stansel of the Yale Medical School in April, 1982, and that she did not therefore discover her "injury" until that date. ²

The trial court, Gaffney, J., found that the plaintiffs' decedent discovered her "injury" no later than May 1, 1980, and granted the defendant's motion for summary judgment. In its memorandum of decision the trial court stated: "The plaintiffs' action was brought more than two years from the date when the injury was sustained or discovered. It was, therefore, on the date of suit a stale claim. Prevention of such claims is a legitimate purpose of a statute of limitations."

General Statutes § 52-584 provides in pertinent part as follows: "No action to recover damages for injury to the person ... caused by ... malpractice of a physician ... shall be brought but 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 defendant claims that, on the facts established by the documents submitted in support of his motion for summary judgment, § 52-584 bars the plaintiffs' action. He asserts that Foster's "injury" was the allegedly misdiagnosed cancer and the documentation showed that Foster admitted she discovered that "injury" no later than May 1, 1980, when she underwent the left modified radical mastectomy. The defendant argues that, since § 52-584 mandates that an action for malpractice by a physician be brought within two years from the date an "injury" is first discovered, the plaintiffs' decedent was required to bring suit no later than May 1, 1982. He asserts, therefore, that, since suit was not brought until June 11, 1982, there was no genuine issue of material fact and that the plaintiffs' cause of action was barred as a matter of law by the two year provision of § 52-584 as determined by the trial court. We disagree and conclude that the defendant did not meet his burden on his motion for summary judgment of demonstrating that there was no genuine issue as to the time when Foster discovered or in the exercise of reasonable care should have discovered her "injury," a material fact necessary to determine the commencement of the running of the statute of limitations.

This court has previously stated that § 52-584 "requires that the injured party bring suit within two years of discovering the injury.... In this context injury occurs when a party suffers some form of 'actionable harm.' " (Emphasis added.) Burns v. Hartford Hospital, 192 Conn. 451, 460, 472 A.2d 1257 (1984). A breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence. Prosser & Keeton, Torts, (5th Ed.) § 30, pp. 164-65; Calderwood v. Bender, 189 Conn. 580, 584, 457 A.2d 313 (1983); Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982); Busko v. DeFilippo, 162 Conn. 462, 466, 294 A.2d 510 (1972); Moore v. Bunk, 154 Conn. 644, 649, 228 A.2d 510 (1967). They are therefore necessary ingredients for "actionable harm." Consequently, the plaintiffs' decedent did not have an "injury" as contemplated by the statute until she discovered or in the exercise of reasonable care should have discovered a causal relationship between the defendant's alleged negligent diagnosis of August, 1979, and subsequent lack of treatment, and the metastasis of her cancer which she discovered on May 1, 1980. Only then did she sustain "actionable harm." Burns v. Hartford Hospital, supra.

The defendant's affidavit and the other documents submitted in support of his motion for summary judgment pinpoint when the defendant examined Foster and initially diagnosed her condition and when she became aware that she had cancer. They do not, however, disclose when Foster discovered or in the exercise of reasonable care should have discovered that the defendant was negligent in his examination, diagnosis, and treatment and the causal nexus, if any, between his alleged negligence and the metastasis of her cancer. There was, therefore, remaining a genuine issue of material fact which was not resolved and the trial court erred in granting the defendant's motion for summary judgment.

In Burns v. Hartford Hospital, supra, cited as authority for our position, we nonetheless affirmed the decision of the trial court which held, on a motion for summary judgment, that § 52-584 was a bar to the plaintiffs' malpractice action. The result in Burns is readily distinguishable from that in the present case, however. In Burns, the plaintiff knew on November 10, 1975 of the causal relation between the defendant's alleged negligence, the insertion of contaminated intravenous tubes into her infant son's leg, and the resulting harm, yet did not commence an action until almost three years later, on November 1, 1978, after her son's condition had worsened. The plaintiff in that case was therefore aware of "actionable harm" or "injury" as contemplated by § 52-584 more than two years prior to starting suit and we held that "[t]he harm need not have reached its fullest...