Neuhaus v. Decholnoky, No. 17249.

Decision Date03 October 2006
Docket NumberNo. 17249.,No. 17250.
Citation280 Conn. 190,905 A.2d 1135
CourtConnecticut Supreme Court
PartiesChristopher NEUHAUS et al. v. Corinne DeCHOLNOKY et al.

Carey B. Reilly, Bridgeport, for the appellees-appellants (plaintiffs).

David J. Robertson, Shelton, for the appellee (named defendant).

Jennifer A. Osowiecki and Jennifer L. Cox filed a brief for the Connecticut Hospital Association as amicus curiae.

BORDEN, NORCOTT, KATZ, PALMER and ZARELLA, Js.

BORDEN, J.

These jointly filed appeals involve the applicability of the three year statute of repose contained in General Statutes § 52-5841 to a medical malpractice action brought against two separate defendants. More specifically, the question before us is whether the plaintiffs' claims against the defendants2 were time barred, or whether the statute of repose was tolled with respect to either of the defendants by the continuing course of conduct doctrine. The defendant Stamford Hospital (hospital) appeals from the judgment of the Appellate Court reversing the trial court's summary judgment rendered in favor of the hospital. Neuhaus v. DeCholnoky, 83 Conn.App. 576, 595, 850 A.2d 1106 (2004). The hospital claims that: (1) the Appellate Court improperly concluded that there were sufficient facts in dispute to warrant invocation of the continuing course of conduct doctrine; and (2) the Appellate Court's holding effectively eliminated the statute of repose in medical malpractice cases and improperly imposed a perpetual duty on physicians to warn patients of any risk of future harm. Additionally, the plaintiffs, Christopher Neuhaus (Christopher) and his parents, David Neuhaus and Andrea Neuhaus, individually and on behalf of their son, appeal from the judgment of the Appellate Court affirming the trial court's summary judgment rendered in favor of the named defendant, Corinne De-Cholnoky. Id. The plaintiffs claim that summary judgment was inappropriate with respect to DeCholnoky because: (1) the Appellate Court improperly redefined the existence and scope of DeCholnoky's duty to the plaintiffs outside the factual requirements of General Statutes § 52-184c;3 and (2) the Appellate Court failed to recognize DeCholnoky's duty to warn the plaintiffs of the known risks associated with her failure to conduct necessary tests prior to Christopher's delivery. We reverse the judgment of the Appellate Court with respect to the plaintiffs' claims against the hospital. We affirm, however, the judgment of the Appellate Court with respect to the plaintiffs' claims against De-Cholnoky.

The plaintiffs brought an action against the defendants on July 16, 1996, alleging that both the hospital and DeCholnoky had been negligent in their care of Christopher and his mother during the course of Christopher's delivery on September 17, 1990.4 Subsequently, the plaintiffs filed a request with the trial court to amend their complaint to include the allegation that the hospital negligently had failed to inform the plaintiffs of certain serious conditions that Christopher was at risk of developing following his birth.5

The defendants separately moved for summary judgment on the theory that, because nearly six years had elapsed between the alleged wrongful conduct and the date the plaintiffs initially brought suit, the plaintiffs' actions were time barred under § 52-584. The plaintiffs claimed that their actions were filed timely because the continuing course of conduct doctrine served to toll the running of the relevant repose provision of the statute of limitations. The trial court6 concluded that the continuing course of conduct doctrine was not applicable to the facts of the case and rendered summary judgment in favor of both of the defendants.

The plaintiffs appealed to the Appellate Court, which reversed the trial court's summary judgment rendered in favor of the hospital and affirmed the trial court's summary judgment rendered in favor of DeCholnoky. This appeal followed.

The opinion of the Appellate Court sets forth the following pertinent facts. "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.7 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, [the plaintiffs] alleged that DeCholnoky failed to conduct adequate tests [including an amniocentesis]8 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. [Additionally] [t]he 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 . . . 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, 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. . . . The [trial] court rejected the plaintiffs' claims and rendered summary judgment in favor of the defendants." Id., at 579-80, 850 A.2d 1106.

In addition, the record reflects that DeCholnoky was aware of the fact that a premature baby may develop respiratory distress syndrome after birth if his or her lungs are not fully developed. DeCholnoky similarly acknowledged that an amniocentesis is the only way to determine fetal lung maturity. Despite this fact, prior to inducing Christopher's birth, DeCholnoky did not perform an amniocentesis to determine if Christopher's lungs were sufficiently mature for delivery. The record further reflects, however, that upon Christopher's discharge from the hospital on October 3, 1990, neither the hospital nor DeCholnoky had any expectation that he would suffer some type of permanent injury in the future as a result of respiratory distress syndrome. Rakos testified that there was no way to predict the outcome of Christopher's respiratory distress syndrome, but that, "[b]ased upon his size and hospital course . . . there was no expectation that he would suffer a permanent injury." Similarly, DeCholnoky testified that at the time of his discharge from the hospital, Christopher was "fine and all of his testing was fine, so everyone thought he would be absolutely fine."

Moreover, the record reflects that DeCholnoky provided prenatal care to Andrea Neuhaus and continued to treat her through April, 1991, but that she ceased to render any care or treatment to Christopher following his delivery on September 17, 1990. The hospital had no involvement in Andrea Neuhaus' prenatal care or her care subsequent to Christopher's birth, and ceased to treat Christopher after his discharge from the hospital on October 3, 1990.

Following the decision of the Appellate Court reversing the trial court's summary judgment rendered in favor of the hospital; see Neuhaus v. DeCholnoky, supra, 83 Conn.App. at 586, 850 A.2d 1106; the hospital petitioned this court for certification to appeal. We granted the petition, limited to the following issue: "Did the Appellate Court properly conclude that, as to the defendant Stamford Hospital, there were sufficient facts in dispute to warrant invocation of the continuing course of conduct doctrine?" Neuhaus v. DeCholnoky, 271 Conn. 903, 859 A.2d 563 (2004). Similarly, in light of the Appellate Court's decision to affirm the trial court's summary judgment rendered in favor of DeCholnoky; see Neuhaus v. DeCholnoky, supra, 83 Conn.App. at 589, 850 A.2d 1106; the plaintiffs also petitioned this court for certification to appeal. We granted the petition, limited to the following issue: "Did the Appellate Court improperly determine that the plaintiffs' claims against the named defendant, Corinne DeCholnoky, were barred by the...

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