Neuhaus v. DeCholnoky

• Decision Date: 29 June 2004
• Citation: 83 Conn. App. 576,850 A.2d 1106
• Court: Connecticut Court of Appeals
• Parties: CHRISTOPHER NEUHAUS ET AL. v. CORINNE DECHOLNOKY ET AL.

83 Conn. App. 576

850 A.2d 1106

CHRISTOPHER NEUHAUS ET AL. v. CORINNE DECHOLNOKY ET AL.

(AC 23317), (AC 23946).

Appellate Court of Connecticut.

Argued March 31, 2004.

Officially released June 29, 2004.

Lavery, C. J., and Foti, Schaller, Dranginis, Flynn, Bishop, West, DiPentima and Dupont, Js.

Carey B. Reilly, with whom, on the brief, was Ruth Weissman, legal intern, for the appellants (plaintiffs).

David J. Robertson, with whom were Gaileen A. Kaufman and Bradley M. Smolkin, for the appellee (named defendant).

Charles D. Ray, with whom were Salvatore N. Fornaciari and, on the brief, David A. Reif and Ingrid L. Moll, for the appellee (defendant Stamford Hospital).

Opinion

BISHOP, J.

This appeal requires us to consider the application of the repose section of the statute of limitations, General Statutes § 52-584, to a medical malpractice action brought on behalf of a disabled minor child by his parents. The plaintiffs, Christopher Neuhaus and his parents, David Neuhaus and Andrea Neuhaus, individually and on behalf of Christopher, appeal from the summary judgment rendered by the trial court in favor of the defendants, Corrine DeCholnoky, an obstetrician and gynecologist, and Stamford Hospital (hospital), on their defense that the plaintiffs' action is time barred pursuant to § 52-584. The plaintiffs claim that summary judgment was improper because the repose section of § 52-584 (1) was tolled by the continuing course of conduct doctrine (2) was tolled by the defendants' fraudulent concealment of their claims and (3) is unconstitutional as applied to the disabled minor child.¹ We affirm the judgment of the trial court as to DeCholnoky and reverse it as to the hospital.

The following facts and procedural history are relevant to our discussion of the issues on appeal. The plaintiff parents instituted this action on July 25, 1996, individually and on behalf of their son, Christopher, who was delivered prematurely at the hospital on September 17, 1990, with premature lungs and thereafter developed a condition known as respiratory distress syndrome. The plaintiffs alleged that both DeCholnoky, who delivered the child, and the neonatologist, Gerald B. Rakos, an employee of the hospital, were negligent in several ways and that as a consequence, Christopher suffers from serious infirmities, including brain damage and cerebral palsy. Principally, they alleged that DeCholnoky failed to conduct adequate tests to determine the developmental readiness of the child's lungs for birth before inducing labor at thirty-seven weeks of gestation. As a result, they alleged, Christopher was delivered before his lungs had developed adequately. The plaintiffs claim that Rakos failed to inform the plaintiff parents of the course of their child's treatment in the hospital and failed to warn them of the known risk of future developmental motor and mental health defects stemming from respiratory distress syndrome and, as a consequence, Christopher is now afflicted with multiple, severe infirmities, including permanent brain damage.

The plaintiffs alleged that when Christopher was discharged from the hospital on October 3, 1990, he was given a clean bill of health by Rakos and that neither DeCholnoky nor Rakos told the parents that Christopher was at risk for subsequent infirmities due to respiratory distress syndrome. The plaintiffs claimed that it was only after the parents had switched pediatricians and requested Christopher's medical charts from the hospital that they then discovered that Christopher had received numerous blood transfusions and a spinal tap while in the care of the hospital. Most notably, the plaintiffs claim that it was only on review of Christopher's hospital records by their new pediatrician that the parents learned that brain damage is a known risk of respiratory distress syndrome.

Separately, both defendants filed motions for summary judgment, asserting that the plaintiffs' action was barred by § 52-584,² the applicable statute of limitations for medical malpractice actions, which requires that such a claim must be brought within two years of discovery of the injury, but in no event any later than three years from the act or omission. In response, the plaintiffs acknowledged that they did not bring the action within three years, but claimed that the second part of the statute, the three year repose provision, was tolled by the continuing course of conduct doctrine. In essence, they claimed that the defendants were under a continuing duty to inform the plaintiffs that Christopher was at risk for permanent medical damage resulting from respiratory distress syndrome. In the alternative, they alleged that the three year limitation of § 52-584 is unconstitutional as applied to their disabled minor child. The court rejected the plaintiffs' claims and rendered summary judgment in favor of the defendants. This appeal followed.

I

The plaintiffs first claim that the court improperly concluded that the statute of limitations in § 52-584 was not tolled by the continuing course of conduct doctrine. Specifically, they argue that there were genuine issues of material fact as to whether Rakos and DeCholnoky had an awareness of Christopher's risk for permanent medical damage and a continuing duty to warn them of the risks of respiratory distress syndrome after Christopher had been discharged from the hospital.

As a preliminary matter, we set forth the legal principles that shape the parameters of our inquiry. "Pursuant to Practice Book § 17-49, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Such questions of law are subject to plenary appellate review.. . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn. App. 846, 848, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).

Under appropriate circumstances, § 52-584 may be tolled under the continuing course of conduct doctrine. Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994). Our Supreme Court has established a three part test for determining whether the statute of limitations has been tolled. The test requires the plaintiffs to prove that the defendants "(1) committed an initial wrong upon the plaintiff[s]; (2) owed a continuing duty to the plaintiff[s] that was related to the alleged original wrong; and (3) continually breached that duty." Witt v. St. Vincent's Medical Center, 252 Conn. 363, 370, 746 A.2d 753 (2000).

"[I]n the medical treatment context . . . continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct. . . ." (Internal quotation marks omitted.) Id., 371. In Sherwood v. Danbury Hospital, 252 Conn. 193, 206, 746 A.2d 730 (2000), a genuine issue of material fact existed as to whether the defendant hospital knew before discharging the plaintiff patient that she had received untested blood that could have contained the human immunodeficiency virus. In Witt, the physician did not inform the patient that the physician was concerned that the lump in the patient's neck could become cancerous. Witt v. St. Vincent's Medical Center, supra, 252 Conn. 372-73. As the defendants in both cases were aware of the risks at the time that the plaintiffs were discharged, our Supreme Court held that the three year statute of repose was tolled until the defendants informed the plaintiffs of such risks. Witt v. St. Vincent's Medical Center, supra, 376; Sherwood v. Danbury Hospital, supra, 209. We have held, however, that for a duty to warn to continue beyond the limitation period imposed by § 52-584, there must be probative evidence that the medical care provider actually knew of the risk before discharge. See Hernandez v. Cirmo, 67 Conn. App. 565, 572, 787 A.2d 657, cert. denied, 259 Conn. 931, 793 A.2d 1084 (2002); Nieves v. Cirmo, 67 Conn. App. 576, 587, 787 A.2d 650, cert. denied, 259 Conn. 931, 793 A.2d 1085 (2002). As the underlying facts as to each defendant are unique, we address each defendant in turn.

A Stamford Hospital

For purposes of applying the test for the imposition of a continuing duty, the court concluded that the plaintiffs had met the first requirement of demonstrating that the hospital had committed an initial wrong in failing to inform them that the diagnosis of respiratory distress syndrome carries with it the risks of serious medical repercussions, including brain injury and cerebral palsy.³ Because this action was filed well after the expiration of the three year statute of limitations, it could survive the hospital's motion for summary judgment only if the plaintiffs could show that after Christopher's discharge, and notwithstanding the hospital's initial failure to warn, the hospital had a continuing duty to warn them of the future risks associated with respiratory distress syndrome. As stated previously, the imposition of a continuing duty to warn the plaintiffs of the risks of respiratory distress syndrome presupposes, in turn, that the hospital had actual knowledge of the risks. See, e.g., Hernandez v. Cirmo, supra, 67 Conn. App. 572. Thus, although a continuing duty may be imposed as a matter of law beyond the time periods set for filing a claim pursuant to § 52-584, a continuing duty must rest on the factual bedrock of actual knowledge.

The core issue in assessing the court's ruling on the motion for summary judgment is whether the plaintiffs presented adequate evidence to raise a genuine issue of material fact that the hospital actually knew at the time of discharge the risks of respiratory distress syndrome. If it can be...