Kelly v. University of Conn. Health Center

• Decision Date: 27 January 2009
• Docket Number: No. 17884.,17884.
• Court: Connecticut Supreme Court
• Parties: Robert J. KELLY v. UNIVERSITY OF CONNECTICUT HEALTH CENTER.

963 A.2d 1

290 Conn. 245

Robert J. KELLY v. UNIVERSITY OF CONNECTICUT HEALTH CENTER.

No. 17884.

Supreme Court of Connecticut.

Argued October 23, 2008.

Decided January 27, 2009.

P. Jo Anne Burgh, with whom was Kathleen Morrison Grover, for the appellant (plaintiff).

Robert Dennis Silva, with whom was Michael G. Rigg, Hartford, for the appellee (defendant).

NORCOTT, PALMER, VERTEFEUILLE, ZARELLA and SCHALLER, Js.

VERTEFEUILLE, J.

The plaintiff, Robert J. Kelly, appeals¹ from the judgment of the trial court granting the motion to dismiss filed by the defendant,² the University of Connecticut Health Center. The plaintiff claims that the trial court improperly concluded that: (1) his claim against the state, alleging medical malpractice and lack of informed consent in connection with his surgery for kidney stones and chronic kidney dysfunction had been presented untimely pursuant to General Statutes § 4-148;³ and (2) No. 05-4, § 1, of the 2005 Special Acts (S.A. 05-4),⁴ enacted to remedy the plaintiff's late notice of his claim in the present action, is unconstitutional as an exclusive public emolument prohibited by article first, § 1, of the Connecticut constitution.⁵ We conclude that the trial court properly dismissed the plaintiff's complaint, and, accordingly, we affirm the judgment of the trial court.

The record reveals the following facts and procedural history. In September, 1995, the plaintiff sought medical treatment from Peter Albertsen,⁶ a physician employed by the defendant, complaining of pain and discomfort associated with a history of kidney stone disease and chronic kidney function problems. Albertsen conducted an evaluation of the plaintiff and advised him that he had kidney stones, recommending that the plaintiff undergo a series of surgical procedures, including a laser lithotripsy,⁷ to treat the condition.

On October 24, 1995, the plaintiff underwent surgery at the defendant's facility under the attention of the defendant's agents and employees, including Albertsen. The plaintiff was informed that the surgery was successful. Following the surgery, the plaintiff began to notice blood in his urine, which he reported to Albertsen. As a result of this complaint and after further evaluation by Albertsen in an effort to detect the cause of the bloody urine, on February 5, 1996, the plaintiff underwent a cystoscopy, a surgical procedure that examines the interior of the bladder. See Stedman's Medical Dictionary (28th Ed. 2006). As a result of that procedure, Albertsen was able to rule out bladder cancer as the cause of the plaintiff's bloody urine. Between 1996 and 2000, the plaintiff continued to experience episodes of bloody urine and sought further diagnosis by the defendant, although one was never made.

On May 23, 2000, the plaintiff underwent another cystoscopy, which was performed by Albertsen at the defendant's facility. On that same day, Albertsen informed the plaintiff for the first time that he detected some type of "foreign body" in the plaintiff's left ureter, which Albertsen initially identified as a plastic sheath. Albertsen recommended additional surgery to diagnose and treat the condition. In June, 2000, the plaintiff consulted with two additional physicians from a different medical facility for evaluation and treatment of the foreign body. On July 20, 2000, the plaintiff underwent surgery at Hartford Hospital for removal of the plastic sheath, which later was identified as laser fibers. The plaintiff ultimately underwent four additional surgical procedures in order to remove the laser fibers and treat his condition, the last of which occurred on December 14, 2000.

On January 3, 2002, the plaintiff filed a notice of claim with the state claims commissioner, requesting permission to bring an action against the defendant. The defendant filed a motion to dismiss the notice on the ground that the claims commissioner lacked subject matter jurisdiction because the claim was untimely filed. The claims commissioner granted the defendant's motion, finding that the claim was untimely under § 4-148(a). The plaintiff then sought permission from the General Assembly pursuant to § 4-148(b) to resubmit his notice of claim despite his untimely filing. See footnote 3 of this opinion. The General Assembly then enacted S.A. 05-4, authorizing the plaintiff to file a late claim. Thereafter, the claims commissioner issued a finding and order permitting the plaintiff to pursue the action against the defendant. The plaintiff subsequently brought the action underlying this appeal in the Superior Court in August, 2005. The defendant filed a motion to dismiss the complaint for lack of subject matter jurisdiction, challenging, inter alia, the constitutionality of S.A. 05-4 as an exclusive emolument for the benefit of the plaintiff. The trial court granted the motion to dismiss, concluding that S.A. 05-4 was unconstitutional, and this appeal followed.

I

The plaintiff first claims that the trial court improperly determined that his initial claim with the claims commissioner in 2002 had been untimely presented under the one year limitation period imposed by § 4-148(a). Specifically, the plaintiff asserts that the trial court improperly determined that actionable harm, for the purpose of establishing when the limitation period under § 4-148(a) began to run, occurred when the plaintiff learned of the presence of the laser fibers in his ureter in July, 2000. The plaintiff claims, instead, that actionable harm did not occur until September, 2001, when the plaintiff discovered the causal connection between the defendant's negligent treatment of the plaintiff and the presence of the fibers in the plaintiff's ureter.

In response, the defendant contends that the trial court properly determined that actionable harm occurred no later than sometime in 2000 when the plaintiff learned of the presence of the laser fibers in his ureter. The defendant claims, in particular, that actionable harm does not require full manifestation of that harm as alleged by the plaintiff. Instead, the defendant asserts that when the plaintiff discovered the presence of the fibers, the one year limitation period for a claim of medical malpractice against the defendant began to run. We agree with the defendant.

The following undisputed additional facts and procedural history are relevant to our resolution of this claim. On September 24, 2001, the plaintiff received a written opinion from a medical expert who, after reviewing the pertinent medical records, opined that the October 24, 1995 lithotripsy was performed negligently and that the injuries the plaintiff had sustained were the direct result of the negligent care of Albertsen as well as the defendant's other agents, servants and employees. The plaintiff filed a claim with the claims commissioner on January 3, 2002, approximately three months after receiving this written expert opinion.

We begin with the appropriate standard of review. It is well established that "the state cannot be sued without its consent." (Internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 732, 846 A.2d 831 (2004), quoting Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977). This doctrine of sovereign immunity "implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Lagassey v. State, supra, at 736, 846 A.2d 831. "A determination regarding a trial court's subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Id., at 737, 846 A.2d 831, quoting Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). Moreover, "[a]s we must in reviewing a motion to dismiss, we take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Miller v. Egan, supra, at 305, 828 A.2d 549, quoting Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 611, 793 A.2d 215 (2002).

We note at the outset of our analysis that the plaintiff's claim against the defendant in the present case is governed by § 4-148. See footnote 3 of this opinion. Under this statute, "no claim shall be presented under [chapter 53, governing claims against the state] but within one year after it accrues." General Statutes § 4-148(a). "In this regard, claims for personal injury are considered `to accrue on the date when the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered. . . .'" Lagassey v. State, supra, 268 Conn. at 733, 846 A.2d 831, quoting General Statutes § 4-148(a). It is important, then, that we begin by addressing the legal standard by which to determine what constitutes the accrual of an injury for the purpose of establishing when the limitation period under § 4-148 began to run.

The issue of timeliness before us today is not one of first impression. Indeed, this court's recent opinion in Lagassey guides our resolution of the plaintiff's first claim in the present appeal. In Lagassey v. State, supra, 268 Conn. at 728-29, 846 A.2d 831, this court was faced with a nearly identical challenge to the timeliness of a claim of medical malpractice against the state under § 4-148(a). The plaintiff, who was the executrix of the estate of her late husband, pursued a claim of medical malpractice on behalf of the estate against the state for alleged negligence in its treatment of the decedent in connection with an abdominal aortic aneurism. Id., at 728, 846 A.2d 831. The state moved to dismiss the claim as untimely, in accordance with the one year limitation period set forth in § 4-148(a), and the trial court granted that motion. I...