Peek v. Manchester Mem'l Hosp., AC 41298

• Decision Date: 01 October 2019
• Docket Number: AC 41298
• Citation: 219 A.3d 421,193 Conn.App. 337
• Court: Connecticut Court of Appeals
• Parties: Delores PEEK v. MANCHESTER MEMORIAL HOSPITAL et al.

193 Conn.App. 337

219 A.3d 421

Delores PEEK

v.MANCHESTER MEMORIAL HOSPITAL et al.

AC 41298

Appellate Court of Connecticut.

Argued March 5, 2019

Officially released October 1, 2019

Neil Johnson, Hartford, for the appellant (plaintiff).

Gretchen G. Randall, with whom, on the brief, was Emily McDonough Souza, New Haven, for the appellees (defendants).

Alvord, Moll and Bear, Js.

ALVORD, J.

The plaintiff, Delores Peek, appeals from the summary judgment rendered in favor of the defendants, Manchester Memorial Hospital and Prospect Medical Holdings, Inc. On appeal, the plaintiff claims that the court improperly determined that her action was barred by the statute of limitations in General Statutes § 52-584.¹ Because we conclude that the evidence before the trial court demonstrated a genuine issue of material fact as to when the plaintiff discovered her injury as contemplated by § 52-584, we reverse the judgment of the trial court.

The record, viewed in the light most favorable to the plaintiff as the nonmoving party, reveals the following relevant facts and procedural history. On January 30, 2015, the plaintiff was admitted to Manchester Memorial Hospital with a medical diagnosis of C-Diff diarrhea. On or about that date, she was assessed at the hospital and found to be at risk for falling. She was placed on "fall prevention protocol" and required assistance to leave her hospital bed. On February 10, 2015, the plaintiff fell while using the restroom and sustained injuries to her shoulder and neck, for which she received medication and treatment. She "was unaware," on the date of her fall, "what was the cause of [her] fall." The plaintiff left the hospital on February 12, 2015, and received follow up care through December 10, 2015, on which date she underwent neck surgery.² On or about April 6, 2015, staff at the office of the plaintiff's doctor informed the plaintiff that "a nurse or nurse's aide should have been responsible for [her] safety while inpatient at [the defendants' hospital]."

On November 22, 2016, the plaintiff received an automatic ninety day extension of the statute of limitations pursuant to General Statutes § 52-190a (b).³ The plaintiff delivered the action to the state marshal for service of process on May 22, 2017. In her one count complaint, the plaintiff alleges that her fall resulted from the defendants' negligence in "fail[ing] to exercise the degree of care, skill, and diligence ordinarily exercised by hospitals engaged in the treat[ment] of patients ... on ... fall prevention protocol ...." On July 26, 2017, the defendants filed an answer and a special defense alleging that the plaintiff's claim was barred by the statute of limitations in § 52-584. On July 31, 2017, the plaintiff filed her reply to the special defense, stating therein: "The plaintiff ... denies any and all allegations of the defendants' special defense in its entirety, the plaintiff was inpatient for the stay subject of the plaintiff's complaint until February 28, 2015."⁴

On September 13, 2017, the defendants filed a motion for summary judgment, maintaining that the plaintiff's action was barred by the statute of limitations in § 52-584. The documents submitted with the defendants' motion and memorandum of law in support of their motion were the plaintiff's certificate of good faith pursuant to § 52-190a and attached written opinion letter, the plaintiff's request for an extension of the statute of limitations, the state marshal's return of service, the defendants' answer and special defense, and the plaintiff's reply thereto.

On December 29, 2017, the plaintiff objected to the motion for summary judgment, arguing that her action was timely because the statute of limitations was tolled under the continuous course of treatment doctrine. She also maintained that the statute of limitations did not begin running until April 6, 2015, on which date she claimed that she "learned that she was on fall risk protocol and that while on fall risk protocol that the hospital was required to provide her assistance whenever she left her bed." She argued that she "was not aware that the defendants' conduct or lack thereof was the cause of her injury until she was informed by the defendant provider on or about April 6, 2015." The plaintiff attached to her opposition memorandum her affidavit averring that she "was unaware," on the date of her fall, "what was the cause of [her] fall." She further averred that staff at her doctor's office informed her on April 6, 2015, that "a nurse or nurse's aide should have been responsible for [her] safety while inpatient at [the defendants' hospital]." The defendants did not file a reply memorandum.

On January 2, 2018, the court granted the defendants' motion for summary judgment, stating that "the plaintiff did not place the action in the hands of the marshal until May 22, 2017. Because the plaintiff suffered actionable harm—the fall and injuries—on February 10, 2015, she should have brought the action on or before February 10, 2017. Having received a ninety day extension ... the suit should have been initiated on or before May 10, 2017. Having failed to initiate this action within the applicable statute of limitations, the action is time barred." This appeal followed.

On appeal, the plaintiff claims that the court improperly determined that her action was barred by the statute of limitations in § 52-584. She argues that the statute of limitations was tolled by the continuous course of treatment doctrine⁵ and, thus, the statute did not begin running until December 10, 2015, on which date she underwent neck surgery. In the alternative, she argues that actionable harm did not occur until April 6, 2015, on which date she claims that she learned that the defendants' negligence had caused her injury. We disagree that the statute of limitations was tolled by the continuing course of treatment doctrine. As to the plaintiff's alternative argument, however, we conclude that she demonstrated the existence of a genuine issue of material fact as to when she discovered her injury.

We begin by setting forth the applicable standard of review. "Practice Book § [ 17 - 49 ] requires that 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. A material fact is a fact that will make a difference in the result of the case.... The facts at issue are those alleged in the pleadings.... The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.... The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [ 17 - 44 and 17 - 45 ]. 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.... Our review of the trial court's decision to grant a motion for summary judgment is plenary.... Summary judgment may be granted where the claim is barred by the statute of limitations." (Internal quotation marks omitted.) Wojtkiewicz v. Middlesex Hospital , 141 Conn. App. 282, 285–86, 60 A.3d 1028, cert. denied, 308 Conn. 949, 67 A.3d 291 (2013).

We next review the law governing the statute of limitations. Section 52-584 provides in relevant part: "No action to recover damages for injury to the person ... shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ...." This court has explained that "this statute imposes two specific time requirements on plaintiffs. The first requirement, referred to as the discovery portion ... requires a plaintiff to bring an action within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered .... The second provides that in no event shall a plaintiff bring an action more than three years from the date of the act or omission complained of.... The three year period specifies the time beyond which an action under § 52-584 is absolutely barred, and the three year period is, therefore, a statute of repose." (Emphasis omitted; internal quotation marks omitted.) Wojtkiewicz v. Middlesex Hospital , supra, 141 Conn. App. at 286–87, 60 A.3d 1028.

Turning to the plaintiff's arguments, we first reject her contention that the statute of limitations was tolled by the continuous course of treatment doctrine. This court has held that that doctrine does not apply to the discovery portion of § 52-584. Id.; Rosato v. Mascardo , 82 Conn. App. 396, 405, 844 A.2d 893 (2004). The continuous course of treatment doctrine applies "only to the repose portion of the statute and not to the discovery portion. The discovery portion addresses the plaintiff's knowledge of the injury and not the defendant's act or omission.⁶ Once the plaintiff has discovered her injury, the statute begins to run. Moreover, after the discovery of actionable harm, the policy behind [the] doctrine, that is, the preservation of a continuing physician-patient relationship to remedy the created harm, is no longer served." (Footnote added.) Rosato v. Mascardo , supra, at 405, 844 A.2d 893. In the present case, the plaintiff commenced her action within three years of the "act or omission complained of"; General Statutes § 52-584 ; and, therefore, her action was not barred by the repose portion of § 52-584. Accordingly, the continuing course of treatment doctrine is not...