Connell v. Colwell

• Decision Date: 20 March 1990
• Docket Number: No. 13724,13724
• Parties: Mary Virginia CONNELL, Administratrix (ESTATE of Vernon CONNELL) v. Bradford COLWELL.
• Court: Connecticut Supreme Court

Page 116

571 A.2d 116

214 Conn. 242

Mary Virginia CONNELL, Administratrix (ESTATE of Vernon CONNELL) v. Bradford COLWELL.

No. 13724.

Supreme Court of Connecticut.

Argued Dec. 6, 1989.

Decided March 20, 1990.

David C. Shaw, with whom were Kimberly A. Knox, and, on the brief, Wesley W. Horton, Hartford, for appellant (plaintiff).

Michael P. Del Sole, New Haven, with whom was Stephen P. Sachner, Cheshire, for appellee (defendant).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and COVELLO, JJ.

SHEA, Associate Justice.

The plaintiff, Mary Virginia Connell, administratrix of the estate of her late husband, Vernon Connell, has appealed from the judgment of the trial court granting the motion of the defendant, Bradford Colwell, a physician, for summary judgment. The trial court concluded that the plaintiff's action for the wrongful death of her husband and her own loss of consortium was barred as a matter of law by the relevant statute of limitations, General Statutes § 52-584, ¹ since there was no genuine issue concerning any material fact that would have prevented its application. The plaintiff had contended, in her amended reply, that the statute of limitations had been tolled by either: (1) the defendant's fraudulent concealment of the cause of action; ² or (2) the defendant's breach of a continuing duty to disclose material facts to the plaintiff and her decedent.

The trial court summarized the following undisputed facts taken from the pleadings and affidavits submitted in conjunction with the defendant's motion for summary judgment. The defendant examined the plaintiff's decedent in 1970 and 1972, and on a yearly basis from 1974 through 1982. ³ The examinations were due, at least in part, to a concern over a history of prostate cancer in the decedent's family. After the examination in 1976, the defendant noted in the decedent's record: "Watch prostate--? early consult," and, after the subsequent examinations, also noted an enlargement of the decedent's prostate. Following the August, 1982 examination, the defendant recommended to the plaintiff and the decedent that, because the decedent had difficulty urinating, he should consult a urologist. On December 2, 1982, the consulting urologist requested that an immediate biopsy be performed on the decedent's prostate. The biopsy revealed well differentiated cancer, for which the decedent underwent radiation therapy. The cancer eventually caused the decedent's death, on June 27, 1986.

On the basis of these facts, assuming as true the allegation that the defendant had failed to disclose any abnormalities, the trial court concluded that the plaintiff or the decedent either discovered or should have discovered an actionable harm in December, 1982, at the time the decedent was diagnosed as having cancer. Noting that the present action was not commenced until May, 1987, the trial court concluded that the action was barred under either the two year limitation or the three year repose portion of § 52-584. Regarding the plaintiff's claim that the statute had been tolled, the trial court concluded: (1) "that the decedent knew, or by the exercise of reasonable diligence could have known of his rights" in December, 1982; (2) that there was "nothing in the record to indicate that [the decedent] was put off any course of inquiry subsequent to that time"; and (3) even if the defendant had a continuing duty to disclose his findings up until the time of the decedent's death, reasonable diligence on the part of the plaintiff or the decedent would have resulted in the discovery of a cause of action against the defendant in December, 1982, when the decedent's cancer was first diagnosed. Accordingly, the trial court granted the defendant's motion for summary judgment.

On appeal the plaintiff argues that the trial court erred by failing to conclude that the applicable statute of limitations had been tolled by either the defendant's fraudulent concealment or his continuing failure to disclose material facts. We conclude that the defendant's motion for summary judgment was properly granted, albeit for reasons partially divergent from the conclusions reached by the trial court. See Bernstein v. Nemeyer, 213 Conn. 665, 669, 570 A.2d 164 (1990); Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 420, 538 A.2d 219 (1988); Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978).

I

In support of her first claim of error the plaintiff advances two arguments. First, that whether the defendant fraudulently concealed her cause of action was a genuine issue of material fact that could be resolved only by a trial. Second, that the trial court erred in applying a "reasonable diligence" standard of discovery to the terms of General Statutes § 52-595. The defendant counters these arguments by asserting: (1) that the defendant made no misrepresentations to the decedent, the person entitled to bring the cause of action; (2) that the record does not support any claim that the changes in the decedent's prostate were concealed from him; (3) that the record does not contain any evidence that the defendant concealed information for the purpose of obtaining delay on the plaintiff's part in filing her lawsuit; and (4) that the alleged misrepresentations did not prevent the plaintiff from obtaining information or from pursuing her cause of action. ⁴ We agree with the defendant's third contention, disagree with the plaintiff's first and, consequently, need not address the remainder of either party's arguments.

"Our standard of review of a trial court's decision to grant a motion for summary judgment is well established. Practice Book § 384 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.' " Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). "Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. Practice Book §§ 380, 381; Burns v. Hartford Hospital, [192 Conn. 451, 455, 472 A.2d 1257 (1984) ]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978)." Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). "The test is whether a party would be entitled to a directed verdict on the same facts." Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).

The defendant, in his motion for summary judgment, relied solely on the periods of limitation contained in § 52-584. In response, the plaintiff asserted that her failure to file suit within the limits of § 52-584 was due, in part, "to the defendant's fraudulent concealment of material information from the decedent and the plaintiff [and] his false representations to the plaintiff...." In support of her contentions, the plaintiff submitted several affidavits, as well as transcripts of the deposition testimony of several potential witnesses, including herself and the defendant. The bulk of the materials submitted by the plaintiff, however, related principally to the alleged malpractice of the defendant. The plaintiff thus relies solely on her own affidavit and deposition testimony as support for her contention that the defendant fraudulently concealed her cause of action.

The relevant portion of the plaintiff's affidavit asserts that after she and the decedent had been told, by the consulting urologist, that a biopsy of the decedent's prostate was in order, she made a telephone call to the defendant. During that call, the plaintiff asserted, "I asked [the defendant] ... if there was anything in [the decedent's] medical history that would indicate the need for a biopsy. [The defendant] seemed surprised when I told him that a biopsy was recommended. After reviewing [the decedent's] records he indicated that there was nothing in [the decedent's] medical history that indicated the need for a biopsy because there had been no change in his prostate over the years he had treated him." The plaintiff's affidavit also alleged that she had obtained her husband's medical records in July, 1986, after his death, and that "[a]fter reading those records [she] realized for the first time that [the defendant] noted on April 17, 1976, unlike in the prior years, that the right lobe of [the decedent's] prostate seemed firm and that his prostate was significantly enlarged." According to the plaintiff, she also realized, at that time, that the defendant had "lied to [her] when he told [her] on December 2, 1982 that there had been no change in the firmness of [the decedent's] prostate from 1970 through 1982."

The plaintiff in her affidavit declared that the defendant had "indicated" in their single telephone conversation that the decedent's medical history showed no need for a biopsy because there had been no change in the condition of his prostate while he was under the defendant's care. The testimony she gave at a deposition, in which she purported to narrate the telephone conversation "just about verbatim," was more limited with respect to what the defendant had actually said to her. She testified that, upon learning that the urologist had recommended a biopsy, the defendant seemed surprised. She further testified that in response to her question whether there was anything in the decedent's past history that would have indicated a need for a biopsy, the defendant replied: "I think it's always been firm.... Wait a minute. I have to go...