Gilman v. Shames

• Decision Date: 26 April 2022
• Docket Number: AC 44456
• Citation: 212 Conn.App. 147,274 A.3d 180
• Parties: Glenn GILMAN et al. v. Brian SHAMES et al.
• Court: Connecticut Court of Appeals

212 Conn.App. 147

274 A.3d 180

Glenn GILMAN et al.

v.Brian SHAMES et al.

AC 44456

Appellate Court of Connecticut.

Argued December 7, 2021

Officially released April 26, 2022

Michael G. Rigg, with whom, on the brief, was Robert D. Silva, for the appellant (defendant state of Connecticut).

Harris Appelman, for the appellees (plaintiffs).

Alvord, Elgo and Cradle, Js.

ELGO, J.

The defendant state of Connecticut¹ appeals from the judgment of the trial court denying its motion to dismiss the action of the plaintiff Glenn Gilman² on the ground of sovereign immunity. On appeal, the defendant claims that the court improperly determined that (1) the Claims Commissioner (commissioner) had waived sovereign immunity with respect to the plaintiff's claims, and (2) the accidental failure of suit statute, General Statutes § 52-592,³ exempted the plaintiff from the two year time limit for bringing a wrongful death action under General Statutes § 52-555.⁴ We reverse the judgment of the trial court.

The following facts, as found by this court in Gilman v. Shames , 189 Conn. App. 736, 208 A.3d 1279 (2019), are relevant to this appeal. "From about December 15, 2014, through August 19, 2015, Shames—who was at all relevant times a physician employed by the University of Connecticut Health Center, of which the John Dempsey Hospital (hospital) is a part—provided medical care and treatment to the decedent, who was the plaintiff's fiancée and domestic partner. The decedent died on October 1, 2015.

"In June, 2016, pursuant to General Statutes § 4-147, the plaintiff filed a notice of claim with the Office of the Claims Commissioner seeking permission to sue the [defendant] for damages on the basis of injuries he claimed to have suffered, including emotional distress and loss of consortium, stemming from medical malpractice allegedly committed against the decedent by Shames and the hospital. By way of a memorandum of decision dated February 23, 2017, the [commissioner], absent objection, authorized the plaintiff to sue the [defendant] for damages of up to $500,000 for alleged medical malpractice by general surgeons or other similar health care providers who constitute state officers and employees, as defined by General Statutes (Rev. to 2015) § 4-141, of the hospital.

"On June 26, 2017, the plaintiff, representing himself, commenced the [first] action against Shames and the hospital. In his original two count complaint, the plaintiff raised claims sounding in bystander emotional distress directed to Shames and the hospital.

"On August 25, 2017, Shames and the hospital filed a motion to dismiss the action, which was accompanied by a separate memorandum of law, asserting that the court lacked subject matter jurisdiction over the plaintiff's bystander emotional distress claims. Specifically, they asserted that the plaintiff's claim directed to Shames was barred by sovereign immunity and/or by statutory immunity pursuant to [General Statutes] § 4-165, and that the plaintiff could not pursue a bystander emotional distress action in the absence of a wrongful death action commenced by the decedent's estate, which had not brought a wrongful death action or received authorization from the [commissioner] to commence such an action. In addition, Shames and the hospital argued that the plaintiff improperly had brought suit against the hospital because the plaintiff had received authorization from the [commissioner] to sue the [defendant] only. On October 11, 2017, the plaintiff filed a motion to substitute the [defendant] as a party defendant in lieu of the hospital, which the trial court granted on October 24, 2017. On October 23, 2017, the plaintiff filed an objection and a separate memorandum of law in opposition to the motion to dismiss. On November 6, 2017, the [defendant and Shames] filed a reply brief, in which they argued additionally that the decedent's estate would be time barred from bringing a wrongful death action as a result of the expiration of the subject matter jurisdictional limitations period set forth in § 52-555.

"On November 13, 2017, the plaintiff filed his operative two count complaint raising claims sounding in bystander emotional distress directed to [the defendant and Shames]. He alleged, inter alia, that Shames had administered ineffective treatments to the decedent for approximately eight months and that, notwithstanding the lack of improvement in her condition, Shames had failed to alter the course of the treatments or to take ‘further diagnostic action as is consistent with standard practice,’ which constituted a substantial factor in the decedent's death. The plaintiff additionally alleged that he had been harmed by Shames’ conduct and by the [defendant's] breach of its duty to the decedent to ensure that the [defendant's] agents, servants, and/or employees acted as ‘reasonably prudent medical professionals.’ More particularly, the plaintiff alleged that he had sustained injuries stemming from his ‘contemporary sensory perception of observing and/or experiencing the demise of the decedent, the decedent's suffering, the decedent's health deteriorating, the decedent's pain and suffering, the administration of life support and, ultimately, [the decedent's] death ....’

"On December 4, 2017, the court heard argument on the [defendant's and Shames’] motion to dismiss. On February 9, 2018, the court granted the motion to dismiss. With respect to the plaintiff's bystander emotional distress claim directed to Shames, the court concluded that (1) to the extent that the plaintiff was suing Shames in Shames’ official capacity as an employee of the hospital, which was an agent of the [defendant], the plaintiff's claim was barred by sovereign immunity, and (2) to the extent that the plaintiff was suing Shames in Shames’ individual capacity, the plaintiff's claim was barred by statutory immunity pursuant to § 4-165. In addition, without limiting its analysis to the plaintiff's claim against the [defendant], the court concluded that the plaintiff's bystander emotional distress ‘claims’ were derivative claims that were not viable absent a predicate wrongful death action commenced by the decedent's estate, which had not commenced such an action and, as a result of the expiration of the limitations period set forth in § 52-555, could not commence such an action." (Footnotes omitted.) Id., at 738–42, 208 A.3d 1279.

The plaintiff then appealed to this court, which affirmed the trial court's decision. Id., at 754, 208 A.3d 1279. In doing so, this court concluded that the plaintiff's claim for bystander emotional distress was a " ‘derivative claim’ " that " ‘can be compensable only if it flows from the bodily injury of another person.’ " Id., at 748–49, 208 A.3d 1279. Relying on our Supreme Court's decision in Jacoby v. Brinckerhoff , 250 Conn. 86, 735 A.2d 347 (1999), which established that "[a] plaintiff's failure to join his [derivative] claim with a predicate action ... was fatal"; Gilman v. Shames , supra, 189 Conn. App. at 750–51, 208 A.3d 1279 ; this court held that the plaintiff's claim was "not viable" because it was not accompanied by a wrongful death action brought by the decedent's estate. Id., at 752, 208 A.3d 1279.

On May 19, 2020, the plaintiff commenced the present action by way of a five count complaint. The first count, brought against the defendant by the plaintiff in his capacity as the administrator of the decedent's estate,⁵ sounded in wrongful death.⁶ The third count, brought by the plaintiff in his individual capacity, alleged bystander emotional distress as a result of the defendant's negligent oversight of the decedent's care. The fifth count, brought by the plaintiff as the administrator of the decedent's estate, asserted that the defendant's conduct also constituted a breach of contract between the defendant and the decedent.⁷

On June 18, 2020, the defendant and Shames filed a motion to dismiss for lack of subject matter jurisdiction. They argued, inter alia, that the commissioner had not granted the plaintiff permission to bring his claim on behalf of the decedent's estate, that the wrongful death action was not brought within two years of the decedent's death as mandated by § 52-555, and that the plaintiff's failure to bring the initial action in his capacity as the administrator of the decedent's estate prevented § 52-592 from extending the statute of limitations set forth in § 52-555. The plaintiff filed an opposition to the motion to dismiss accompanied by a memorandum of law on November 3, 2020, in which he argued that a "nontechnical interpretation" of the plaintiff's notice of claim was proper and that the accidental failure of suit statute applied regardless of his status with respect to the decedent's estate at the time of the initial action.

On December 16, 2020, the court issued its memorandum of decision on the defendant's motion to dismiss. Noting that both of the plaintiff's actions were centered on alleged medical malpractice on the part of the defendant's agents, the court broadly construed the plaintiff's notice of claim and concluded that, however "inartfully drawn," (1) the notice properly apprised the commissioner of the plaintiff's intention to bring a wrongful death claim on behalf of the decedent's estate and (2) the waiver of sovereign immunity by the commissioner validly encompassed that claim. With respect to the accidental failure of suit statute, the court emphasized that § 52-592 " ‘is remedial and is to be liberally interpreted.’ " The court then analogized the present matter to Isaac v. Mount Sinai Hospital , 210 Conn. 721, 732–33, 557 A.2d 116 (1989), wherein our Supreme Court held that if a sufficient "identity of interest" exists between the parties bringing two actions, "total identity of plaintiffs is not a prerequisite to application of [ § 52-592 ]." The court reasoned that, because the plaintiff—like the plaintiff in Isaac —was not the administrator at the time of his first...