Gabrielle v. Hospital of St. Raphael

• Decision Date: 04 January 1994
• Docket Number: No. 11346,11346
• Court: Connecticut Court of Appeals
• Parties: William V. GABRIELLE v. HOSPITAL OF ST. RAPHAEL et al.

Page 1232

635 A.2d 1232

33 Conn.App. 378

William V. GABRIELLE v. HOSPITAL OF ST. RAPHAEL et al.

No. 11346.

Appellate Court of Connecticut.

Argued Nov. 1, 1993.

Decided Jan. 4, 1994.

Lawrence S. Dressler, with whom, on the brief, was Howard Lawrence, New Haven, for appellant (plaintiff).

Merton G. Gollaher, Jr., with whom, on the brief, was Jeremy G. Zimmermann, New Haven, for appellees (defendants).

Before LAVERY, LANDAU and HEIMAN, JJ.

HEIMAN, Judge.

The plaintiff appeals from the summary judgment rendered in favor of the defendants. ¹ The plaintiff asserts that the trial court improperly rendered the summary judgment because (1) by its action, the trial court, in effect, set aside the plaintiff's automatic ninety day extension of the statute of limitations that had been granted by the clerk, (2) the defendants should have been required to appeal from the granting of the ninety day extension of time, (3) it improperly found that the automatic extension of time does not provide an automatic suspension of the running of the statute of limitations, and (4) it refused to set aside the summary judgment rendered in favor of both defendants. We are unpersuaded by these claims and affirm the judgment of the trial court.

The following facts are necessary to a proper resolution of this appeal. On April 26, 1989, the plaintiff was treated by the defendant physician, Anthony Coppola, at the defendant Hospital of St. Raphael for lacerations to his hand from a shattered glass bottle. He was seen by Coppola at the emergency facility of the defendant hospital.

By petition ² dated May 24, 1991, a date after the two year period of limitations provided for in General Statutes § 52-584, ³ the plaintiff sought an automatic extension of the statute of limitations pursuant to General Statutes § 52-190a. ⁴ The petition itself alleged that "[t]he statute of limitations would have run on April 26, 1991." The clerk of the Superior Court for the judicial district of New Haven granted the petition on July 11, 1991.

The writ, summons and complaint in this action were dated July 11, 1991, with a return day of August 20, 1991. The writ was served on an agent of the defendant hospital on July 12, 1991, and service was completed by in hand service on the defendant Coppola on July 23, 1991. Thus, the last service was made eighty-eight days after the expiration of the two year period of limitations.

The defendants filed an answer together with a special defense that asserted that the plaintiff's claims were barred by General Statutes § 52-584. ⁵ The plaintiff denied the allegations of the special defense. Upon the closing of the pleadings, the defendants filed a motion for summary judgment, the granting of which is the genesis of this appeal. The trial court held, as a matter of law, that the extension provided for in General Statutes § 52-190a(b) must be requested prior to the expiration of the statute of limitations. Since the petition for the extension was filed after the expiration of the statute of limitations, the trial court granted the defendants' motion for summary judgment. We agree and affirm the judgment of the trial court.

I

Although the plaintiff appears to raise four separate issues on appeal, ⁶ three of these issues are merely variations on the same theme: a claim that the filing of a petition pursuant to General Statutes § 52-190a(b) revives an action already time barred by General Statutes § 52-584. ⁷

We begin our analysis by stating the standard by which we review the decision of the trial court in granting a motion for summary judgment. 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." See Scrapchansky v. Plainfield, 226 Conn. 446, 450, 627 A.2d 1329 (1993); Danziger v. Shaknaitis, 33 Conn.App. 6, 9, 632 A.2d 1130 (1993). Although the burden of showing the nonexistence of any material fact is on the party seeking summary judgment, "the 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...." (Internal quotation marks omitted.) Danziger v. Shaknaitis, supra; Nardi v. AA Electronic Security Engineering, Inc., 32 Conn.App. 205, 209, 628 A.2d 991 (1993); Cortes v. Cotton, 31 Conn.App. 569, 572-73, 626 A.2d 1306 (1993). In deciding motions for summary judgment, the trial court is obligated to construe the evidence in the light most favorable to the nonmoving party. Scrapchansky v. Plainfield, supra; Nardi v. AA Electronic Security Engineering, Inc., supra. The test to be applied is whether a party would be entitled to a directed verdict on the same facts. Danziger v. Shaknaitis, supra, 33 Conn.App. at 10, 632 A.2d 1130; Cortes v. Cotton, supra.

The plaintiff argues that § 52-190a(b) automatically generates a stay upon the filing of a petition. He further claims that even where such petition is filed subsequent to the expiration of the statute of limitations, the filing of the petition has the effect of reviving an action that is already time barred by the failure to commence suit within the period of limitations. We are not persuaded.

The general purpose of § 52-190a "is to discourage the filing of baseless lawsuits against health care providers." LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990); Yale University School of Medicine v. McCarthy, 26 Conn.App. 497, 502, 602 A.2d 1040 (1992). The lack of a certificate of good faith is not a jurisdictional defect and thus does not deprive the court of subject matter jurisdiction. LeConche v. Elligers, supra, 215 Conn. at 713, 579 A.2d 1. Our cases explain that the failure to attach a certificate of good faith pursuant to § 52-190a subjects the case to a motion to strike the complaint pursuant to Practice Book § 152(1) ⁸ for failure to state a claim upon which relief can be granted, but that the defect is curable by a timely amendment filed pursuant to Practice Book § 157 ⁹ or Practice Book § 175. ¹⁰ Id. at 711, 579 A.2d 1; Yale University School of Medicine v. McCarthy supra. Thus, the requirement of filing a certificate does not mandate that the statute of limitations for malpractice actions be treated different from other statutes of limitations.

Statutes of limitations are statutes of repose and are designed to "(1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise." Ecker v. West Hartford, 205 Conn. 219, 240, 530 A.2d 1056 (1987); Wynn v. Metropolitan Property & Casualty Ins. Co., 30 Conn.App. 803, 808-809, 623 A.2d 66, cert. granted, 226 Conn. 907, 625 A.2d 1379 (1993). A statute of limitations normally acts as a bar to a remedy otherwise available. Ecker v. West Hartford, supra, 205 Conn. at 232, 530 A.2d 1056. Given the rationale for enactment of statutes of limitations, the legislature may even enact a statute that may, on occasion, bar an action before the cause of action accrues. Zapata v. Burns, 207 Conn. 496, 509, 542 A.2d 700 (1988). Statutes of limitations are legislative enactments that "prescribe the periods within which actions may be brought upon certain claims or within which certain rights may be enforced." Bridgeport v. Debek, 210 Conn. 175, 184, 554 A.2d 728 (1989).

Section 52-584 mandates that no action to recover for the alleged malpractice of a hospital or physician shall be brought but within two years from the date when the injury is first sustained or discovered, except under certain circumstances where the time may be enlarged. Failure to bring suit within the period of limitations bars the action. See Burns v. Hartford Hospital, 192 Conn. 451, 460, 472 A.2d 1257 (1984). The General Assembly in enacting § 52-584 has ordained that one must assert an action in malpractice within two years or be barred. Id. On the face of the pleadings, including the petition filed under § 52-190a(b), the plaintiff failed to meet the requirements of the statute of limitations.

Nothing in the language of § 52-190a(b) supports a claim that the General Assembly intended to permit the use of a late filed petition for an automatic extension as a vehicle to revive an already expired statute of limitations. To reach such a result would require that we torture the clear language of both statutes. We have often stated that in the field of statutory interpretation, '[T]he law favors rational and sensible statutory construction." Lundgren v. Stratford, 12 Conn.App. 138, 146, 530 A.2d 183, cert. denied, 205 Conn. 808, 532 A.2d 76 (1987). "When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results." Id., quoting Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 331, 142 A.2d 524 (1958). Further, "[i]n analyzing the plain language [of the statute] the terms must be interpreted according to their ordinary meaning unless their context dictates otherwise." Nichols v. Warren, 209 Conn. 191, 196, 550 A.2d 309 (1988).

Our case law, in interpreting statutes of limitations, has consistently held that failure to bring an action within the time limitation bars the cause of action. See, e.g., Bridgeport v. Debek, supra; Burns v. Hartford Hospital, supra. "In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed...