Rosato v. Mascardo

• Decision Date: 13 April 2004
• Docket Number: (AC 23423)
• Citation: 82 Conn. App. 396,844 A.2d 893
• Court: Connecticut Court of Appeals
• Parties: ANTONINA ROSATO v. TERESITA MASCARDO

82 Conn. App. 396

844 A.2d 893

ANTONINA ROSATO v. TERESITA MASCARDO

(AC 23423)

Court of Appeals of Connecticut.

Argued October 14, 2003.

Officially released April 13, 2004.

Lavery, C. J., and DiPentima, and Peters, Js. Edward V. Walsh, with whom was John. C. Turner, Jr., for the appellant (plaintiff).

Frank H. Santoro, with whom, on the brief, was Joyce A. Lagnese, for the appellee (defendant).

Opinion

DiPENTIMA, J.

The principal issue in this medical malpractice case is whether the "continuous treatment" or "continuing course of conduct" doctrine tolls the statute of limitations in General Statutes § 52-584. The plaintiff, Antonina Rosato, brought this action ultimately in two counts against the defendant, Teresita Mascardo, alleging that she suffered damages as a result of the defendant's unauthorized insertion of silicone breast implants during a surgical procedure. The plaintiff appeals from the judgment rendered after the granting of the defendant's motion for summary judgment as to the first count, which alleged malpractice and which the court found was barred by the statute of limitations, and after the court directed a verdict on the second count, which alleged breach of contract. We affirm the judgment of the trial court in part and reverse it in part.

The facts pertinent to this appeal follow. On February 13, 1989, the defendant performed surgery on the plaintiff. The surgery included bilateral mastopexy¹ with subpectoral breast augmentation, rhinoseptoplasty to repair a deviated septum and repair of diastasis recti.² The plaintiffs first postoperative visit with the defendant was on February 20, 1989, at which time the defendant informed her that silicone breast implants had been inserted during surgery.

The action was commenced on November 19, 1992. The plaintiff filed an amended complaint on June 1, 1993, adding to the first count of medical malpractice a second count alleging breach of contract. Both counts addressed the surgical procedures performed by the defendant on February 13, 1989. On June 14, 2002, the defendant filed a motion for summary judgment as to both counts, arguing that the claims were barred by the two year statute of limitations contained in § 52-584.³ The plaintiff opposed the motion. The court granted the motion as to the medical malpractice count and denied it as to the breach of contract count. The case proceeded to trial before the jury on the breach of contract claim. Prior to the close of the plaintiffs case, the court directed a verdict for the defendant. This appeal followed.

I

The plaintiff first claims that the court improperly granted the defendant's motion for summary judgment on the first count. The plaintiff argues that the court improperly concluded that neither the continuing course of conduct doctrine nor the continuing treatment doctrine tolled the statute of limitations to save the medical malpractice count. The issue that we address here is whether either doctrine applies to toll the statutory period after the plaintiff has discovered her injury.⁴ We disagree with the plaintiff and hold that neither doctrine is applicable because she discovered her injury five days after the tortious act occurred.

As a preliminary matter, we note that the issue is before us pursuant to the granting of a motion for summary judgment. "[T]he scope of our review of the granting of a motion for summary judgment is plenary.... In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.... Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue....

"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 the 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.... 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.... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact." (Citation omitted; internal quotation marks omitted.) Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, 69 Conn. App. 151, 156-57, 795 A.2d 572 (2002).

For purposes of summary judgment and this appeal, the court views the evidence in the light most favorable to the plaintiff. In her affidavit filed in opposition to the defendant's motion for summary judgment, the plaintiff averred the following. At her first postoperative meeting when she was told of the insertion of the silicone breast implants, she was furious and demanded their immediate removal. The defendant told the plaintiff that she would remove the breast implants free of charge after the plaintiff healed and when the defendant's new surgical center was completed. At her second postoperative visit, the plaintiff again informed the defendant that she wanted the implants removed immediately. The defendant told her that they would be removed as soon as the plaintiff was physically ready. In March, 1989, the defendant removed stitches to some or all of the plaintiff's surgical sites. Also in March, the plaintiff complained that she felt a lump in her right breast and that her right breast stayed up high while her left breast drooped. To correct that problem, the defendant wanted to make an incision in the plaintiff's breast. The plaintiff refused and reiterated to the defendant that she wanted the breast implants removed immediately. During monthly visits in April, May and July, 1989, the defendant examined the plaintiffs breasts and told her that as soon as her new surgical center opened, she would remove the implants. The plaintiff stopped by the defendant's office often between July, 1989, and August, 1992, to inquire about scheduling the removal surgery. During those visits, the defendant comforted the plaintiff and told her to be patient. She also told her that she would remove the implants as soon as the surgical center was open.

In August, 1992, the defendant informed the plaintiff that the operating room at the defendant's surgical center was complete. The defendant agreed to schedule the surgery. At the scheduling meeting, the defendant told the plaintiff that the cost of the silicone implant removal surgery was $4000. The plaintiff refused to pay, and the defendant refused to remove the implants for free. The plaintiff never returned to the defendant's care after August, 1992.

The applicable statute of limitations, § 52-584, imposes two specific time requirements on plaintiffs. The first requirement, referred to as the discovery portion, and the only portion applicable in this case, "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...." (Emphasis added; internal quotation marks omitted.) Nardi v. AA Electronic Security Engineering, Inc., 32 Conn. App. 205, 210-11, 628 A.2d 991 (1993). 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. See McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 334, 471 A.2d 646 (1984).

The parties agree that the date of discovery was February 20, 1989, the date the plaintiff learned that the defendant had surgically inserted silicone breast implants. Therefore, under the discovery portion of § 52-584, the plaintiff was required to bring her action on or before February 20, 1991.

The plaintiff bases her claim of tolling on the parties' relationship through August, 1992, which allegedly implicates either the continuous treatment doctrine or the continuing course of conduct doctrine. Under the continuous treatment doctrine, the statute does not begin to run until the course of treatment giving rise to the injuries is terminated. See Blanchette v. Barrett, 229 Conn. 256, 274, 640 A.2d 74 (1994). Under the continuing course of conduct doctrine, the statute of limitations is tolled when there is evidence of a breach of duty that remained in existence after the initial or original wrongful conduct. Id., 275.

The policies underlying both doctrines are similar. "The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied.... For example, the doctrine is generally applicable under circumstances where [i]t may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury or where the negligence consists of a series of acts or omissions and it is appropriate to allow the course of [action] to terminate before allowing the repose section of the statute of...