Lagassey v. State
| Decision Date | 04 May 2004 |
| Docket Number | (SC 16986). |
| Citation | 846 A.2d 831,268 Conn. 723 |
| Court | Connecticut Supreme Court |
| Parties | LOUISETTE G. LAGASSEY, EXECUTRIX (ESTATE OF WILFRED J. LAGASSEY) v. STATE OF CONNECTICUT. |
Borden, Norcott, Palmer, Vertefeuille and Zarella, Js.
Gary J. Strickland, with whom was Vincent M. DeAngelo, for the appellant (plaintiff).
Albert G. Danker, Jr., for the appellee (defendant).
The plaintiff appeals1 from the judgment of the trial court granting the defendant's motion to dismiss. The plaintiff claims that the trial court improperly concluded that her claim against the state, alleging medical malpractice in connection with her husband's death, had been untimely presented under General Statutes § 4-148.2 We agree and, accordingly, we reverse the judgment of the trial court.
The plaintiff, Louisette G. Lagassey, the executrix of the estate of the decedent, Wilfred J. Lagassey, presented notices of claim, individually and on behalf of the decedent's estate, to the claims commissioner (commissioner), pursuant to General Statutes § 4-141 et seq., alleging medical malpractice by one or more employees of the defendant, the state of Connecticut. The defendant moved to dismiss the claims as untimely and the commissioner granted the motion to dismiss.
Thereafter, pursuant to § 4-148(b); see footnote 2 of this opinion; the General Assembly passed No. 96-16 of the 1996 Special Acts,3 which authorized the decedent's estate to present its claim against the defendant. The plaintiff again presented notices of claim, individually and on behalf of the decedent's estate, to the commissioner. The defendant again moved to dismiss the claims, this time on the ground that Special Act 96-16 was unconstitutional as an exclusive public emolument in violation of article first, § 1, of the constitution of Connecticut.4 The commissioner granted the motion to dismiss the claim presented by the plaintiff individually, but denied the motion to dismiss the claim on behalf of the estate. Accordingly, the commissioner authorized the plaintiff to bring an action on behalf of the decedent's estate against the defendant.
Thereafter, the plaintiff commenced this action in the trial court. The defendant again moved to dismiss the action on the ground that Special Act 96-16 was unconstitutional as an exclusive public emolument. The trial court agreed, and dismissed the action.
The following facts and procedural history are undisputed for the purposes of this appeal.5 In 1989, the decedent was diagnosed with an infra-renal abdominal aortic aneurysm, which measured 4.1 centimeters. After this diagnosis, the decedent was monitored regularly by a physician at Yale-New Haven Hospital. In August, 1992, an ultrasound revealed that the aneurysm had grown to approximately 5.1 centimeters. Surgery was recommended and scheduled to be performed in November, 1992, by Richard Gussberg, a vascular surgeon at Yale-New Haven Hospital.
On the evening of October 7, 1992, the decedent experienced lower back pain, gastrointestinal distress, and abdominal pain. On October 8, 1992, at approximately 1 a.m., the decedent arrived at the John Dempsey Hospital at the University of Connecticut Health Center (John Dempsey Hospital), where tests were performed in order to determine the condition of the decedent's aneurysm. These tests determined that the aneurysm had grown to 5.7 centimeters, and that a leak could not be ruled out.
At that time, Steven Ruby, a vascular surgeon employed at the John Dempsey Hospital, examined the decedent. Ruby was informed that, since August, the decedent's aneurysm had grown from 5.1 to 5.7 centimeters. The decedent was given Percocet to relieve his back and abdominal pain.
Shortly thereafter, at approximately 7:45 p.m. on October 8, 1992, the decedent experienced extreme pain in his back and abdomen. Personnel at the John Dempsey Hospital then observed that the decedent's abdomen was protruding. At approximately 8 p.m., a suppository was prescribed to the decedent. Almost immediately upon administering the suppository, however, the decedent had a seizure and went into cardiac arrest. The decedent was then transferred to the operating room, where he died at approximately 9:30 p.m. The cause of death was a ruptured abdominal aortic aneurysm.
In December, 1992, the plaintiff's son, Paul Lagassey, began to inquire as to whether the decedent's death may have been caused by medical malpractice. That month, he sought the opinion of his family's physician, Hugh Friend, an internist. Friend indicated that he had not noticed any evidence of malpractice in connection with the decedent's treatment. In early 1993, Paul Lagassey sought the opinion of Gussberg, the physician at Yale-New Haven Hospital who was scheduled to perform the surgery on the decedent in November, 1992. Upon review of the decedent's medical records, Gussberg indicated that the decedent had received the appropriate care. The matter then rested temporarily.
During the spring or summer of 1994, Paul Lagassey fortuitously met a cardiovascular surgeon, who, in conversation, stated that abdominal pain, coupled with a known abdominal aneurysm, required immediate medical attention in order to rule out a rupture. Thereafter, Paul Lagassey was referred to Stephen L. Deckoff, a vascular surgeon, who reviewed the decedent's records. On August 18, 1994, Deckoff issued a report substantiating that, in view of the decedent's symptoms and recent medical history, the appropriate standard of care required that the decedent should have received immediate medical attention in order to rule out a rupture.
On September 19, 1994, pursuant to § 4-141 et seq., the plaintiff presented a notice of claim on behalf of the decedent's estate to the commissioner against the defendant, alleging that one or more employees of John Dempsey Hospital had been negligent in their treatment of the decedent. On October 5, 1994, the plaintiff presented a second notice of claim individually, alleging the same.6 The defendant moved to dismiss the plaintiff's claims as untimely, in accordance with the one year limitation period set forth in § 4-148(a). The commissioner dismissed the claims as untimely, concluding that "if reasonable care had been exercised, the [plaintiff], should have discovered the damage or injury alleged during the one year limitation period."
Thereafter, upon the plaintiff's request, and pursuant to § 4-148(b), the General Assembly passed Special Act 96-16; see footnote 3 of this opinion; which authorized the decedent's estate to present its claim against the defendant, despite the failure to comply with the one year time limitation set forth in § 4-148(a). Accordingly, on June 25, 1996, the plaintiff presented notices of claim, individually and on behalf of the decedent's estate, to the commissioner. The defendant moved to dismiss the claims on the ground that Special Act 96-16 was unconstitutional as an exclusive public emolument in violation of article first, § 1, of the constitution of Connecticut. See footnote 4 of this opinion. The commissioner dismissed the claim presented by the plaintiff individually on the ground that Special Act 96-16 authorized only a claim by the decedent's estate. The commissioner denied the defendant's motion to dismiss the claim on behalf of the estate, however, on the ground that the commissioner lacked the authority to review the actions of the General Assembly. Accordingly, the commissioner authorized the plaintiff to bring an action on behalf of the decedent's estate against the defendant.
Thereafter, the plaintiff commenced this action, accompanied by a certificate of good faith pursuant to General Statutes § 4-160(b).7 The plaintiff's complaint, alleging that the defendant was negligent in its treatment of the decedent, was set forth in two counts: count one on behalf of the decedent's estate; and count two on behalf of the plaintiff, individually, for loss of consortium. The defendant again moved to dismiss both counts of the complaint on the ground that sovereign immunity had not been effectively waived because Special Act 96-16 was unconstitutional as an exclusive public emolument. In addition, the defendant moved to dismiss count two of the complaint on the ground that Special Act 96-16 had not authorized the plaintiff to bring a claim individually against the defendant, but only on behalf of the decedent's estate. In opposition to the defendant's motion, the plaintiff claimed that: (1) the commissioner improperly had determined that her action was barred by the one year time limitation set forth in § 4-148(a); and (2) therefore, Special Act 96-16 had not granted her any special privilege.8
The trial court concluded that the plaintiff's claim was untimely pursuant to § 4-148(a). In addition, the court concluded that Special Act 96-16 was unconstitutional as an exclusive public emolument because there was no public purpose in allowing the plaintiff to bring an action that otherwise would have been time barred. Accordingly, the trial court granted the defendant's motion to dismiss, and rendered judgment dismissing the action.9 This appeal followed.
The plaintiff claim that the trial court improperly concluded that Special Act 96-16 was unconstitutional as an exclusive public emolument because the commissioner improperly dismissed her claim for untimeliness. The plaintiff's argument rests on the notion that her claim could not properly be dismissed as untimely because a trier of fact reasonably could have concluded otherwise. More specifically, the plaintiff contends that: (1) the one year limitation in § 4-148(a) did not accrue until the plaintiff, in the exercise of reasonable care, should have discovered the injury; (2) the plaintiff, despite exercising reasonable care, did not discover the injury until the summer of 1994; and (3) because the plaintiff presented notices of claim in September, 1994,...
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