Sherwood v. Danbury Hospital
Decision Date | 29 February 2000 |
Docket Number | (SC 16085) |
Citation | 252 Conn. 193,746 A.2d 730 |
Court | Connecticut Supreme Court |
Parties | ROBERTA ANN SHERWOOD v. DANBURY HOSPITAL |
McDonald, C. J., and Borden, Katz, Palmer, Sullivan, Lavery and Flynn, Js. Carey B. Reilly, with whom was Michael P. Koskoff, for the appellant (plaintiff).
Donald W. O'Brien, with whom was Amy F. Goodusky, for the appellee (defendant).
The plaintiff, Roberta Ann Sherwood, appeals1 from the judgment of the trial court rendered following the granting of summary judgment for the defendant, Danbury Hospital (hospital). On appeal, the plaintiff claims that the trial court, in granting the defendant's motion for summary judgment, improperly concluded that the plaintiffs action was barred by the three year statute of repose contained in General Statutes § 52-584.2 The plaintiff also claims that the trial court improperly granted the defendant's motion to strike her claim that the defendant had committed unfair or deceptive acts or practices in the conduct of trade or commerce in violation of the Connecticut Unfair Trade Practices Act (CUTPA). See General Statutes § 42-110b (a).3
We conclude that there is a genuine issue of material fact as to whether the statute of repose in § 52-584 was tolled by the continuing course of conduct doctrine; see, e.g., Blanchette v. Barrett, 229 Conn. 256, 275-77, 640 A.2d 74 (1994); based on the defendant's continuing wrongful conduct.4 Accordingly, we reverse that part of the trial court's judgment granting the defendant's motion for summary judgment. We conclude, however, that the trial court properly granted the defendant's motion to strike the plaintiffs CUTPA claim and, accordingly, affirm that part of the trial court's judgment striking the plaintiffs claim under CUTPA. Because we reverse that part of the trial court's judgment granting summary judgment in favor of the defendant, we do not decide the other issues pertaining to the granting of the defendant's motion for summary judgment that the plaintiff raises in her appeal.5
The record reveals the following pertinent facts and procedural history. On March 2, 1985, the Food and Drug Administration approved the enzyme-linked immunosorbant assay test (ELISA test) for the purpose of screening units of blood for antibodies associated with the human immunodeficiency virus (HIV). Ramon Kranwinkel, a pathologist and hematologist, who, at all relevant times, was the director of the blood bank at the hospital, testified in a deposition that he had learned of the Food and Drug Administration's ratification of the ELISA test "sometime in 1985, earlier that year, probably around February, but [was] not sure of the exact date."
On April 18, 1985, Dennis Ogelia, the plaintiffs treating physician, admitted the plaintiff to the hospital for the treatment of congenital scoliosis. The next day, April 19, 1985, the plaintiff underwent a posterior spinal fusion during which she received four units of blood. The blood was provided to the hospital by the American Red Cross (Red Cross), and had an expiration date of April 22, 1985.
The plaintiff, in an uncontroverted affidavit, swore that, prior to her surgery: (1) she "did not know of the risk of contracting HIV from a blood transfusion and [that] the [d]efendant did not inform [her] of [that] risk"; (2) she "did not know that [she] had the option [of banking her] own blood for the surgery and [that] the [d]efendant did not tell [her] of [that] option"; (3) she "was not aware that there was a test to detect the presence of ... HIV [antibodies] in blood"; (4) she "did not know that [she] was given untested blood"; and (5) "no one ever told [her] that [she] could [have] postpone[d] [the] surgery until tested blood was available."
Kranwinkel testified that neither he nor anyone else from the hospital blood bank had told the plaintiff, prior to surgery, that the ELISA test was available for screening blood for the presence of HIV antibodies. Kranwinkel further testified that when the plaintiff was transfused, he had assumed that the blood had not been tested for the presence of HIV antibodies. On, or shortly after, April 20, 1985, the day after the plaintiff's transfusion, Kranwinkel received a letter from the Red Cross. The letter stated that, "effective April 22, 1985, all units of whole blood and blood components routinely distributed by the American Red Blood Services, Connecticut Region, will have been determined to be nonreactive when tested for [antibodies associated with HIV]." The letter requested the hospital blood bank to "promptly return" to the Red Cross all units of blood remaining in its inventory that had not been tested for HIV antibodies. Kranwinkel testified that the hospital blood bank had complied with this request. Kranwinkel further testified that, had the plaintiff not received the units of blood that were used during her transfusion, those units would have been among the units returned to the Red Cross.
The plaintiff was discharged from the hospital on May 14, 1985. There was no evidence that the relationship between the plaintiff and the defendant continued after she was discharged.
On September 1, 1994, following a routine blood test ordered by Micheline Williams, the plaintiff's physician, the plaintiff learned for the first time that she had contracted HIV. An investigation ensued, through which the plaintiff learned, for the first time, on March 14, 1995, that the source of her HIV infection was contaminated blood administered to her during the April 19, 1985 transfusion.
The plaintiff's uncontroverted affidavit also contained numerous, specific factual statements regarding the absence of any information given by the defendant to the plaintiff following the transfusion. She swore that "at no time" did the defendant tell her that: (1) "the ELISA test was available at the time of [her] surgery"; (2) "the blood [that she] was given during surgery was not tested for the presence of HIV [antibodies]"; (3) "the blood [that she] was given [during] surgery [had been] `recalled' by the Red Cross"; and (4) "[she] could have postponed her surgery ... a few days" until tested blood became available.
The plaintiff also submitted, in opposition to the defendant's motion for summary judgment, an uncontroverted affidavit from Elizabeth Donegan, a physician who, from 1985 to 1991, had been in charge of operating a blood bank at a hospital affiliated with the University of California at San Francisco, a community with a large population infected with HIV. Donegan was retained as an expert witness by the plaintiff and stated in her sworn affidavit that: (1) she directed a program at her hospital between July, 1987, and October, 1987, "to notify all persons who had been recipients of untested blood dating back to approximately the time [her hospital] was aware of the ... presence [of HIV] in [the] community"; and (2) in March, 1987, "the Center for Disease Control ... issued a recommendation that recipients of multiple transfusions between 1978 and late spring of 1985 be advised that they were at risk for ... HIV ... infection and [be] offered HIV antibody testing."
The plaintiff filed this complaint on July 9, 1996, alleging in the first count that the defendant had been negligent,6 and, in the second count, that the defendant had committed unfair or deceptive acts or practices in the conduct of trade or commerce in violation of CUTPA.7 The trial court, Grogins, J., granted the defendant's motion to strike the plaintiffs CUTPA claim. The plaintiff reserved her right to appeal the trial court's decision to strike that count, and that ruling forms one basis for the plaintiffs appeal.
In her substituted complaint, the plaintiff repeated her allegations sounding in negligence; see footnote 6 of this opinion; and eliminated her CUTPA claim in accordance with the trial court's ruling on the defendant's motion to strike. The defendant answered the plaintiffs substituted complaint, and pleaded a special defense, namely, that the statute of repose in § 52-584 barred the plaintiffs negligence claim.
The trial court, Radcliffe, J., concluded that, because the plaintiffs action had been filed on July 9, 1996, more than eleven years following the blood transfusion that she received at the hospital on April 19, 1985, the statute of repose in § 52-584 barred her negligence claim. Accordingly, the trial court granted the defendant's motion for summary judgment on the remaining negligence count and rendered judgment thereon. This conclusion forms a second basis for the plaintiffs appeal.
We first consider whether the trial court properly granted the defendant's motion for summary judgment. Specifically, we consider the plaintiffs claim that there is a genuine issue of material fact as to whether the statute of repose in § 52-584 was tolled by the continuing course of conduct doctrine based on the defendant's alleged wrongful conduct after the plaintiffs transfusion.
(Internal quotation marks omitted.) Connecticut National Bank v. Rytman, 241 Conn. 24, 37, 694 A.2d 1246 (1997). (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).
The plaintiff claims that the trial court improperly concluded that the three year statute of repose in § 52-584 barred her negligence claim. That statute provides in relevant part that "[...
To continue reading
Request your trial-
Sherwood v. Danbury Hosp.
...the three year repose provision of § 52-584 had been tolled by the continuing course of conduct doctrine. Sherwood v. Danbury Hospital, 252 Conn. 193, 195-96, 746 A.2d 730 (2000). Following our remand, the trial court, Schuman, J., rendered judgment for the defendant, concluding, inter al......
-
Doe v. Boy Scouts of Am. Corp.
...risk of harm and, even if there were no such evidence, omissions may form the basis of a negligence claim. Sherwood v. Danbury Hospital , 252 Conn. 193, 205, 746 A.2d 730 (2000) (“wrongful conduct may include acts of omission as well as affirmative acts of misconduct” [internal quotation ma......
-
McCullough v. World Wrestling Entm't, Inc.
...ever “been eliminated .” Neuhaus , 280 Conn. at 206, 905 A.2d 1135 (emphasis added). For example, in Sherwood v. Danbury Hosp. , 252 Conn. 193, 746 A.2d 730, 733 (2000) (Sherwood I ), a plaintiff in 1985 had received a transfusion of blood that she alleged had been knowingly administered de......
-
Essex Ins. Co. v. William Kramer & Assocs., LLC
...concern for possibility of cancer at time of initial tests, which gave rise to continuing duty to warn); Sherwood v. Danbury Hospital , 252 Conn. 193, 211 n.15, 746 A.2d 730 (2000) (noting that prior case law establishes that "a physician may have a duty to correct a previous misdiagnosis w......
-
TABLE OF CASES
...Sherlock-White v. Probate Appeal, No. TTDCV094011501S, 2009 WL 2357957 (Conn. Super. Ct. July 7, 2009) 6-8 Sherwood v. Danbury Hospital, 252 Conn. 193 (2000) 9-4:3.1 Shevlin v. Shafran, 2001 WL 1468629 (Conn. Super. Ct. Nov. 6, 2001) 9-6:1 Shew v. Freedom of Information Commission, 245 Conn......
-
CHAPTER 9 - 9-4 STATUTE OF LIMITATIONS
...omitted).[31] Sanborn v. Greenwald, 39 Conn. App. 289, 297-98, cert. denied, 235 Conn. 925 (1995).[32] Sherwood v. Danbury Hospital, 252 Conn. 193, 203 (2000). In Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, 69 Conn. App. 151 (2001), the Appellate Court determined that there was a......