Isaac v. Mount Sinai Hosp.

• Decision Date: 18 April 1989
• Docket Number: No. 13588,13588
• Citation: 557 A.2d 116,210 Conn. 721
• Court: Connecticut Supreme Court
• Parties: Deborah J. ISAAC, Administratrix (Estate of Redgnard Isaac) v. MOUNT SINAI HOSPITAL et al.

Page 116

557 A.2d 116

210 Conn. 721

Deborah J. ISAAC, Administratrix (Estate of Redgnard Isaac) v. MOUNT SINAI HOSPITAL et al.

No. 13588.

Supreme Court of Connecticut.

Argued Feb. 9, 1989.

Decided April 18, 1989.

Joan C. Harrington, New Canaan, for appellant (plaintiff).

Carla R. Walworth, with whom, on the brief, were Philip S. Walker, and Deborah S. Chang, Hartford, for appellee (named defendant).

Louis B. Blumenfeld, with whom was Karen Jansen Casey, Hartford, for appellee (defendant St. Francis Hosp.).

Lois Tanzer, Hartford, for appellee (defendant Richard B. Weltman).

Andrew J. O'Keefe, with whom was Maureen Sullivan Dinnan, West Hartford, for appellee (defendant Anesthesia Associates, P.C.).

HULL, Justice.

Before Heally, Shea, Callahan, Glass and Hull, JJ.

The dispositive issue in this case is whether the administratrix of a decedent's estate can bring a new action for wrongful death under our accidental failure of suit statute, General Statutes § 52-592, ¹ where the original wrongful death action was dismissed for lack of subject matter jurisdiction because, at the time such original action was commenced, the individual bringing suit had not been appointed administratrix of the estate by the probate court. We conclude that § 52-592 authorizes such a second suit and that the trial court erred in dismissing it.

The factual and procedural background of this case is not in dispute. Redgnard Isaac died at Mt. Sinai Hospital in Hartford on April 10, 1979. On March 30, 1981, the plaintiff commenced a wrongful death action pursuant to General Statutes § 52-555 ² alleging negligence in the treatment of the decedent by the defendants Mt. Sinai Hospital, St. Francis Hospital, Dr. Richard B. Weltman, and Anesthesia Associates, P.C. The plaintiff alleged in the complaint that she had been appointed administratrix of the decedent's estate on May 17, 1979. In 1982, she discovered that she had been involved only in the transfer of survivorship property and had not been named administratrix. She was subsequently appointed administratrix of the decedent's estate on September 28, 1982. Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 599, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985). By that time, however, the three year limitation period for bringing a wrongful death action under § 52-555 had passed. Id., at 601, 490 A.2d 1024.

On February 4, 1983, the defendants moved to dismiss the action for lack of subject matter jurisdiction on the ground that the plaintiff had failed to comply with the provisions of § 52-555 that state that only an "executor or administrator" may bring an action thereunder. Id., at 599, 490 A.2d 1024. The trial court granted the motion to dismiss and the plaintiff appealed to the Appellate Court. The Appellate Court upheld the court's dismissal for lack of subject matter jurisdiction, stating that a wrongful death action under § 52-555 may be maintained only by an executor or administrator of an estate, and at the time she brought suit the plaintiff was neither. Id., at 600-601, 490 A.2d 1024.

The plaintiff brought the present action for wrongful death on June 7, 1985, against the same four defendants. The defendants moved to strike the complaint on the ground that it was barred by the statute of limitations contained in § 52-555, which provides that actions for wrongful death must be brought "within two years from the date when the injury is first sustained or discovered or ... should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of." In granting the motion to strike, the court ruled that: (1) the time limitation for bringing an action under § 52-555 is a limitation of the liability itself and must be strictly complied with; (2) the second cause of action was the same cause of action as the original because it was the decedent's claim for his injuries and death resulting from the same group of facts that made up the defendants' alleged negligence; (3) General Statutes § 52-592, our accidental failure of suit statute, does apply to wrongful death cases; (4) the limitation portion of the wrongful death statute is substantive and may not be waived; (5) a cause of action for wrongful death does not arise and exist so that the statute of limitations can begin to run upon it until an administrator is appointed who can bring suit; and (6) the statute of limitations on the plaintiff's suit had run before she was appointed administratrix in September, 1982. The trial court did not further consider the effect of § 52-592 on this case. This appeal followed.

Although the parties have framed the issue in different ways, ³ we consider all of the claimed issues to raise the question of whether the accidental failure of suit statute authorizes the plaintiff to bring a new action for wrongful death where the original action was dismissed because at the time it was commenced the plaintiff was in fact not the administratrix of the decedent's estate.

We first note certain claims of the defendants with which we agree. It is undisputed that § 52-555 requires that an executor or administrator must bring a wrongful death action within the three year statute of limitations. "[S]tanding to bring a wrongful death action is ... conferred only upon either an executor or administrator." Isaac v. Mount Sinai Hospital, supra, at 601, 490 A.2d 1024. It is also undisputed that "[w]here ... a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter.... In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone." (Citations omitted.) Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987). We find all of these undisputed principles of law relied upon by the defendants, however, to be irrelevant to the issue involved in this case, i.e., whether the accidental failure of suit statute authorized the bringing of the second action. Our attention, therefore, must be focused on the accidental failure of suit statute, General Statutes § 52-592.

The case of Korb v. Bridgeport Gas Light Co., 91 Conn. 395, 99 A. 1048 (1917), furnishes an unusually strong foundation on which to build our analysis of the effect of § 52-592 on this case. In Korb, the plaintiff administrator brought an action under the provisions of § 4 of chapter 193 of the Public Acts of 1903 to recover for personal injuries resulting in the death of his intestate decedent. The pleadings revealed that the action was not commenced within one year from the neglect complained of as then required by the statute. The action was, however, commenced within one year after the entering of a judgment of nonsuit on a former action for the same cause begun within one year from the neglect. After a verdict and judgment for the plaintiff the defendant appealed, claiming, among other things, that the court erred in overruling its earlier demurrer to the complaint which contended that under the circumstances described above the plaintiff had not presented a good cause of action. Id., at 396, 99 A. 1048. We concluded that the wrongful death statute involved created a liability unknown to common law and that the proviso therein limiting the time to bring an action under it to one year from the neglect complained of was something more than an ordinary statute of limitations. Id., at 397, 99 A. 1048. We stated that since the liability and the remedy were created by the same statute, the limitations of the remedy were to be treated as limitations of the right, and that if liability was to attach to the claimed offender, the statutory provision prescribing the limitation should be strictly observed. Id. We noted that if the wrongful death statute stood by itself, unaffected by other legislation, there could be no question but that the plaintiff's action had not begun seasonably and must fail. Id. We then noted: "We have, however, in § 1127 of the General Statutes a statute which is not to be ignored. It provides, among other things, that if any action, commenced within the time limited by law, shall fail for the reason, among others, that a judgment of nonsuit is rendered therein, the plaintiff may commence a new action for the same cause or subject of action at any time within one year after the determination of the original action. The language of this section, read in its natural meaning, appears to fit the present situation exactly, and to provide for an extension of the time limitation for the bringing of an action upon § 4 of the Act of 1903 under the conditions existing in the present case." (Emphasis added.) Id., at 397-98, 99 A. 1048.

The defendant in Korb argued that the extension statute involved had no bearing or effect upon limitations contained in statutes creating a right and made an essential condition of the existence of that right. We held: "Section 1127 provides that if any action, commenced within the time limited by law, shall fail for specified causes, the plaintiff may bring a new action for the same cause within one year after the determination of the original action. This language certainly is general and comprehensive. It neither embodies exceptions or reservations, nor suggests any. The extension of time is in terms made applicable to all cases where a suit, seasonably begun, has failed for the causes stated.... The provision is remedial in its character. It was passed to avoid hardships arising from an unbending enforcement of limitation statutes. Those hardships are the same in character whether the statute be one which concerns the remedy only, or the right as well as the remedy. It should be so construed as to advance the remedy rather than to retard it." Id., at 401-402, ...