Cefaratti v. Aranow

• Decision Date: 09 December 2014
• Docket Number: No. 35659.,35659.
• Citation: 154 Conn.App. 1,105 A.3d 265
• Court: Connecticut Court of Appeals
• Parties: Lisa J. CEFARATTI v. Jonathan S. ARANOW, M.D., et al.

154 Conn.App. 1

105 A.3d 265

Lisa J. CEFARATTI

v.Jonathan S. ARANOW, M.D., et al.

No. 35659.

Appellate Court of Connecticut.

Argued March 20, 2014.

Decided Dec. 9, 2014.

Kelly E. Reardon, with whom, on the brief, was Robert I. Reardon, Jr., New London for the appellant (plaintiff).

Ellen M. Costello, New Haven, for the appellees (named defendant et al.).

S. Peter Sachner, with whom, on the brief, was Jason T. Prueher, for the appellee (defendant Middlesex Hospital).

BEACH, SHELDON and BEAR, Js.

Opinion

BEACH, J.

The principal issue presented is whether the statute of limitations in this medical malpractice action may be tolled by application of either the doctrine of continuing treatment or the doctrine of continuous course of conduct, or both. The action was brought by the plaintiff, Lisa J. Cefaratti, against the defendants, Jonathan Aranow, a licensed physician specializing in general, bariatric, vascular, and thoracic surgery; Shoreline Surgical Associates, P.C. (Shoreline), Aranow's professional corporation; and Middlesex Hospital (hospital).¹ The plaintiff appeals from the trial court's judgment granting the defendants' motions for summary judgment. The plaintiff claims that: (1) the court improperly rendered summary judgment for Aranow and Shoreline because (A) genuine issues of material fact existed as to whether the continuing course of conduct doctrine applied to toll the statute of repose set forth in General Statutes § 52–584,² and (B) genuine issues of material fact existed as to whether the continuing treatment doctrine applied to toll the statute of repose in § 52–584 ; (2) the court improperly declined to recognize a “foreign object” exception to the statute of repose; (3) the court improperly failed to consider whether application of the statute of repose violated the plaintiff's constitutional right to access to the courts; and (4) the court improperly granted the hospital's motion for summary judgment because genuine issues of material fact existed as to whether there was an agency relationship between Aranow and the hospital. We reverse, in part, the judgment of the trial court.

The record, viewed in the light most favorable to the nonmoving plaintiff for purposes of reviewing the trial court's rendering of summary judgment, reveals the following facts and procedural history. On or about August 20, 2003, the plaintiff met with Aranow and discussed treatment options for her condition of morbid obesity

. After consultation and a physical examination, Aranow recommended that the plaintiff undergo open gastric bypass surgery. On or about December 8, 2003, the plaintiff was admitted to the hospital where Aranow performed open gastric bypass surgery.

On January 14, 2004, May 11, 2004, October 22, 2004, May 10, 2005, November 16, 2005, December 17, 2007, and May 20, 2009, the plaintiff received “follow-up medical care, examinations, treatment, and monitoring” from Aranow. This activity included the review of laboratory test results, ordered by Aranow and conducted by the hospital, on May 8, 2004, October 4, 2004, June 5, 2007, November 27, 2007, January 3, 2008, and March 9, 2009. Approximately one year after the surgery, the plaintiff began experiencing abdominal pain with bowel movements and constipation. She testified at her deposition that each time she saw Aranow she told him that she was experiencing abdominal pain. On or about August 6, 2009, after being diagnosed with breast cancer

by another physician, the plaintiff submitted to a computerized tomography (CT) scan of her chest, abdomen, and pelvis. The CT scan revealed the presence of foreign material in the plaintiff's abdominal cavity. On September 9, 2009, the plaintiff attended an appointment with Aranow, at which time Aranow informed the plaintiff that a foreign object in her abdominal cavity was a surgical sponge.

On August 5, 2010, the plaintiff brought this medical malpractice action. An amended complaint, dated November 30, 2010, included four counts. Count one asserted a claim of medical negligence against Aranow for leaving a surgical sponge

inside the plaintiff's abdomen during the open gastric bypass surgery performed on December 8, 2003.³ Count three alleged that the hospital was vicariously liable for Aranow's negligence. Count four alleged that Shoreline was liable for Aranow's negligence. The plaintiff claimed that, as a result of the defendants' negligence, she incurred additional medical expenses and suffered mental and physical pain, including constipation, protrusion on the left side of her stomach, abdominal pain, fatigue, nausea and chronic pain requiring medication, including narcotics. The plaintiff also claimed that she suffered a permanent impairment of her earning capacity.

On October 1, 2012, the hospital filed a motion for summary judgment as to counts two and three of the plaintiff's amended complaint. As to count three, alleging vicarious liability, the hospital argued that it was entitled to judgment as a matter of law because: (1) there was no genuine issue of material fact that the plaintiff's direct claim of medical negligence against it was time barred and that the statute of repose in § 52–584 was not tolled by the continuing course of conduct doctrine or the continuing treatment doctrine, and therefore the plaintiff's derivative claim against the hospital based on Aranow's alleged negligence must fail; and (2) even if the plaintiff's claim against Aranow was not barred, the hospital was not vicariously liable for Aranow's alleged negligence because there was no genuine issue of material fact that Aranow was not an agent, apparent agent, servant or employee of the hospital. On November 30, 2012, the plaintiff filed an objection to the hospital's motion for summary judgment, along with a supporting memorandum of law, and evidence in the form of deposition testimony, affidavits, pamphlets, and medical records. The plaintiff argued that summary judgment was not appropriate because there were genuine issues of material fact as to whether: (1) the statute of repose in § 52–284, as applied to Aranow, was tolled by the continuing course of conduct doctrine and/or the continuing treatment doctrine; and (2) there was an actual or apparent agency relationship between the hospital and Aranow.

On December 13, 2012, Aranow and Shoreline filed a joint motion for summary judgment as to counts one and four of the plaintiff's amended complaint. Aranow and Shoreline argued that there was no genuine issue of material fact that the plaintiff's claim of medical negligence against them was barred by the statute of repose set forth in § 52–584. On January 16, 2013, the plaintiff filed an objection to Aranow and Shoreline's motion for summary judgment along with a supporting memorandum of law and evidence in the form of deposition testimony, letters, and medical records. The plaintiff argued that summary judgment was not appropriate because there were genuine issues of material fact as to whether the statute of repose was tolled by the continuing course of conduct doctrine and/or the continuing treatment doctrine.

On January 22, 2013, the court, Aurigemma, J., heard oral argument on the defendants' motions for summary judgment. On April 29, 2013, the court granted the defendants' motions for summary judgment as to all counts. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The plaintiff claims that the court improperly rendered summary judgment with respect to her claims of medical negligence against Aranow and Shoreline because issues of material fact existed as to whether the three year repose provision of § 52–584 was tolled by the continuing course of conduct doctrine or the continuing treatment doctrine.⁴

We set forth our standard of review. “The standards governing our review of a trial court's decision to grant a motion for summary judgment are well established. Practice Book [§ 17–49 ] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact....

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... Because the trial court rendered judgment for the [defendants] as a matter of law, our review is plenary and we must decide whether [the trial court's] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citations omitted; internal quotation marks omitted.) Davies v. General Tours, Inc., 63 Conn.App. 17, 20–21, 774 A.2d 1063, cert. granted on other grounds, 256 Conn. 926, 776 A.2d 1143 (2001) (appeal withdrawn October 18, 2001).

Our review of the plaintiff's claims is “guided by the law governing the statute of limitations on actions alleging medical malpractice. Section 52–584 requires such actions to 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 statute also establishes a repose period under which no such action may be brought more than three years from the date of the act or omission complained of.... [T]he relevant date of the act or omission complained of, as that phrase is used in § 52–584, is...