Catz v. Rubenstein, No. 12737

CourtSupreme Court of Connecticut
Writing for the CourtCALLAHAN
Citation513 A.2d 98,201 Conn. 39
PartiesHarold CATZ, Executor (ESTATE of Elaine S. FOSTER), et al. v. Stephen R. RUBENSTEIN.
Decision Date12 August 1986
Docket NumberNo. 12737

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).

Page 99

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

[201 Conn. 40] 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. [201 Conn. 41] 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

Page 100

justified in her belief because the defendant told her, in August, 1979, that there was no evidence[201 Conn. 42] 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."

[201 Conn. 43] 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...

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99 practice notes
  • Champagne v. Raybestos-Manhattan, Inc., RAYBESTOS-MANHATTA
    • United States
    • Supreme Court of Connecticut
    • August 8, 1989
    ...128, 131-32, 26 A.2d 780 (1942). 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, tha......
  • Santopietro v. City of New Haven, No. 15355
    • United States
    • Supreme Court of Connecticut
    • August 27, 1996
    ...breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence." Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 (1986); see RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994) ("essential elements of a cause of a......
  • Bhinder v. Sun Co., Inc., No. 15820
    • United States
    • Supreme Court of Connecticut
    • August 11, 1998
    ...breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence. Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 (1986); see RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994) (essential elements of a cause of act......
  • Borkowski v. Sacheti, No. 14181
    • United States
    • Appellate Court of Connecticut
    • November 20, 1996
    ...by the defendant and a causal connection between the defendant's breach and the resulting harm to the plaintiff. See Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 Page 1105 The recognition of the existence of this cause of action by LaBieniec is confirmed by its determination that the e......
  • Request a trial to view additional results
99 cases
  • Champagne v. Raybestos-Manhattan, Inc., RAYBESTOS-MANHATTA
    • United States
    • Supreme Court of Connecticut
    • August 8, 1989
    ...128, 131-32, 26 A.2d 780 (1942). 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, tha......
  • Santopietro v. City of New Haven, No. 15355
    • United States
    • Supreme Court of Connecticut
    • August 27, 1996
    ...breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence." Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 (1986); see RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994) ("essential elements of a cause of a......
  • Bhinder v. Sun Co., Inc., No. 15820
    • United States
    • Supreme Court of Connecticut
    • August 11, 1998
    ...breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence. Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 (1986); see RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994) (essential elements of a cause of act......
  • Borkowski v. Sacheti, No. 14181
    • United States
    • Appellate Court of Connecticut
    • November 20, 1996
    ...by the defendant and a causal connection between the defendant's breach and the resulting harm to the plaintiff. See Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 Page 1105 The recognition of the existence of this cause of action by LaBieniec is confirmed by its determination that the e......
  • Request a trial to view additional results

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