Miribilio v. Opticare Eye Health Centers, Inc.

• Decision Date: 13 October 2017
• Docket Number: UWYCV146025593S
• Court: Connecticut Superior Court
• Parties: Corrine Miribilio v. Opticare Eye Health Centers, Inc.

Corrine Miribilio v. Opticare Eye Health Centers, Inc.

No. UWYCV146025593S

Superior Court of Connecticut, Judicial District of Waterbury, Waterbury

October 13, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION TO SET ASIDE AND MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

Barbara Brazzel-Massaro, J.

I. INTRODUCTION

The defendant has filed two separate post-trial motions. It filed a motion for judgment notwithstanding the verdict dated April 3, 2017 and a motion to set aside the verdict also dated April 3, 2017. Each of the motions address the applicability of the theories of continuing course of treatment and the continuing course of conduct. The court will address each motion separately although they have similarities. The defendant contends that the court erred in failing to grant the motion for directed verdict arguing that the tolling doctrines of continuing course of conduct and continuing course of treatment did not apply to toll the statute of limitations. The plaintiff has filed memoranda in opposition dated April 28, 2017. The defendant filed a reply memoranda dated May 31, 2017 and the plaintiff filed a sur-reply dated June 5, 2017.

II. FACTUAL BACKGROUND

In 2005, the plaintiff, Corrine Mirabilio, became a client/patient of Opticare Eye Center, Inc. (" Opticare") for all of her eye exams and care. She considered the group to be her primary care eye doctor. From 2005 until 2013 she made appointments for eye exams by calling the office and scheduling either a regular examination or an urgent care appointment if she experienced an eye problem. In most instances she simply called the office number and scheduled an appointment. The defendant employed a number of doctors and would schedule her with whomever was available at the time. On her first visit on July 13, 2005, she was treated by Dr. Taylor. On this visit a patient form was filled out and the first exam was completed. Dr. Taylor included in this examination a measurement of disc to cup ratio and optos photographs of her retina. The photos showed the lining of the eye. This examination and the specific films and measurements were the first medical records to identify the condition of the plaintiff's eyes for the records kept by Opticare. After the appointment in 2005 Ms. Mirabilio would schedule an eye appointment at Opticare each year. Each visit thereafter included the current examination and testing as well as a review of her medical record file for each of the prior examinations by the doctor(s) at Opticare Eye Health Center. The records of each of the visits were available and provided to the doctor when he or she examined Ms. Mirabilio. During the years that followed Ms. Mirabilio was examined on February 8, 2007, February 13, 2008, May 27, 2009, August 4, 2009, and June 28, 2011. In June 2011, Ms. Mirabilio was diagnosed with an advanced stage of glaucoma and significant optic nerve damage. The plaintiff filed this action claiming that the defendant through its doctors failed to timely and properly diagnose the plaintiff as having the symptoms of glaucoma and examining her eyes each visit without addressing or recognizing the obvious signs of glaucoma.

As part of the defense in this action the defendant argued that the legal action is precluded because the complaint was filed beyond the statute of limitations. The plaintiff rebutted that the theories of continuing course of conduct and continuing treatment apply to permit this action beyond the statute of limitations.

The defendant also argued that the damages related to the chance or risk of loss cannot apply because the plaintiff failed to provide evidence or testimony of a statistical calculation or probability percentage which would apply to the future loss of vision.

After the presentation of the plaintiff's case, the defendants filed a motion for directed verdict. They argued that the plaintiff had failed to present testimony or evidence that would support the tolling of the statute under either the continuing course of conduct doctrine or the continuous treatment doctrine and thus the court should enter judgment for the defendants. The court denied the motion and allowed the action to be presented to the jury along with interrogatories that specifically addressed the statute of limitations issue and a charge as the two doctrines.

Counsel prepared specific interrogatories to be answered by the jury as part of their deliberation. These interrogatories included questions concerning liability and damages as well as the statute of limitations questions related to the doctrines of continuing course of conduct and continuing treatment. The parties also agreed to verdict forms for the plaintiff and the defendant which were submitted to the jury for deliberation and rendering a verdict.

III. DISCUSSION

A. MOTION TO SET ASIDE

1. STANDARD

General Statutes Sec. 52-228b and Practice Book Sec. 16-35 provide for motions to set aside the verdict, for a new trial and for additur to remedy an erroneous jury verdict. The standard of review governing such motions is well-settled. " The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion is against the law or the evidence . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that in the absence of clear abuse, we shall not disturb." (Citation omitted, internal quotation marks omitted.) Edmands v. CUNO, Inc., 277 Conn. 425, 452, 892 A.2d 938 (2006).

On a motion to set aside the verdict, " [t]he evidence is viewed in a light most favorable to the prevailing party and to sustaining the verdict . . . and indulge every reasonable presumption in favor of its correctness . . . [The court] must determine whether the jury reasonably could have concluded, on the basis of the evidence and reasonable inferences drawn from that evidence, that the verdict . . . was improper." (Internal quotation marks omitted.) McDermott v. Calvary Baptist Church, 68 Conn.App. 284, 293-94, 791 A.2d 602 (2002). A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to law or unsupported by the evidence. A verdict will be set aside and judgment directed only if this court can determine that the jury could not reasonably and legally have reached their conclusion." Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 610, 662 A.2d 753 (1995). " A jury verdict should not be disturbed unless it is against [the weight of the] evidence or its manifest injustice is so plain as to justify the belief that the jury or some of its members were influenced by ignorance, prejudice, corruption, or impartiality. [T]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable." (Citations omitted.) Kalleher v. Orr, 183 Conn. 125, 126-27, 438 A.2d 843, (1981).

" A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion." (Internal quotation marks omitted.) Id., 294.

The defendant contends in its motion to set aside that the jury charges with respect to continuing course of treatment and chance of loss were improper.

The standard of review for a challenge to the propriety of a jury instruction is well established. " [J]ury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge . . . A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict. The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law . . . [I]nstructions to the jury need not be in the precise language of a request . . . Moreover, [j]ury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury." Matthiessen v. Vanech, 266 Conn. 822, 831-32, 836 A.2d 394 (2003).

2. CONTINUING COURSE OF TREATMENT

The defendant asserts in its motion to set aside the verdict (#206) that the jury charge as to the continuing course of treatment doctrine resulted in harmful error because the charge was inadequate and incomplete. Specifically, the defendant asserts that the jury charge should have included the language offered by the defendant as follows: " If the evidence shows that each of the plaintiff's visits to Opticare constituted a discrete, individual treatment which ceased when the involved optometrist undertook an eye examination, you must find that there was no continuing treatment." The defendant supports its assertion that its proposed language is necessary on the basis of the statement in Grey v. Stamford Health Systems, Inc. 282 Conn. 745, 757, 924 A.2d 831 (2007) that " [c]ourts applying the continuous treatment doctrine also are required under the second prong of our newly articulated test to make the sometimes difficult determination as to whether the services provided by a medical practitioner constituted continuous treatment, to which the doctrine may apply, or instead, constituted separate and isolated contacts." Essentially, the defendant contends that the jury charge was an incorrect...