Zielinski v. Kotsoris, No. 17441.

• Decision Date: 08 August 2006
• Docket Number: No. 17441.
• Citation: 279 Conn. 312,901 A.2d 1207
• Court: Connecticut Supreme Court
• Parties: Shelley ZIELINSKI et al. v. Harriet KOTSORIS et al.

901 A.2d 1207

279 Conn. 312

Shelley ZIELINSKI et al. v. Harriet KOTSORIS et al.

No. 17441.

Supreme Court of Connecticut.

Argued May 17, 2006.

Decided August 8, 2006.

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Anthony B. Corleto, with whom was Joelle M. Ehmka, Danbury, or the appellants (plaintiffs).

Eric J. Stockman, for the appellee (defendant Stamford Hospital).

Charles W. Fleischmann, with whom, on the brief, was Garie J. Mulcahey, Shelton, for the appellees (defendant Kristan D. Zimmerman et al.).

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

NORCOTT, J.

In this appeal, we consider whether the continuous treatment doctrine or the continuing course of conduct doctrine tolls the statute of limitations in a medical malpractice case when the plaintiff's condition is subsequently diagnosed or treated by a different physician employed by the same corporate entity that had employed the defendant physician at the time of the alleged negligence. The named plaintiff, Shelley Zielinski, brought this medical malpractice action¹ against the defendants, Harriet Kotsoris,² Kristan D. Zimmerman Stamford Radiological Associates, P.C. (Associates),³ and Stamford Hospital (hospital), alleging that Kotsoris and Zimmerman negligently misdiagnosed her brain tumor as Lyme disease. The plaintiff appeals⁴ from the trial court's granting of the defendants' motions for summary judgment on the basis that those claims were time barred by the expiration of the relevant statute of limitations, specifically General Statutes § 52-584.⁵ We affirm the judgment of the trial court.

The record, viewed in the light most favorable to the nonmoving plaintiff for purposes of reviewing the trial court's grant of summary judgment, reveals the following facts and procedural history. On April 3, 1996, the plaintiff went to Kotsoris, a board certified internist and neurologist, for evaluation of symptoms including fatigue, headache and tinnitus. Kotsoris tentatively diagnosed the plaintiff with Lyme disease, and sent her to the hospital for a magnetic resonance imaging (MRI) of her brain, which was performed on April 10, 1996. Subsequently, both Kotsoris and Zimmerman, a radiologist who is a partner in Associates, which functionally is the hospital's radiology department, reviewed that MRI. Both physicians failed to detect the presence of an early brain tumor on that MRI, and Kotsoris continued to treat the plaintiff for Lyme disease, notwithstanding the fact that testing for that illness was negative or inconclusive. Zimmerman never had any contact with the plaintiff at that time, and never again reviewed a film in her case.

The plaintiff's symptoms did not abate, and Kotsoris referred her back to the hospital on December 10, 1999, for another MRI. William Harley, a neuroradiologist who also is a partner in Associates, read that MRI and reported to Kotsoris that it revealed the presence of a 2.2 centimeter mass in the fourth ventricle of the plaintiff's brain. Harley also reviewed the 1996 MRI and determined that the tumor was visible on that film as well. Thereafter, the plaintiff underwent surgery and radiation treatment, both of which were rendered riskier and more invasive because of the delay in starting treatment.

The plaintiff brought this action on September 17, 2001, alleging that Kotsoris and Zimmerman negligently failed to detect the tumor on the 1996 MRI, and that Associates and the hospital were liable for Zimmerman's negligence. Following discovery, Zimmerman, Associates and the hospital moved for summary judgment.⁶ Zimmerman, Associates and the hospital also moved, pursuant to Practice Book § 13-14, to preclude the plaintiff from offering expert testimony at trial because she had failed to disclose an expert witness "within a reasonable time prior to trial." The trial court, Tobin, J., granted that motion to preclude, except that it granted the plaintiff permission to depose Harley and possibly disclose him as an expert after that deposition. Thereafter, to afford the plaintiff a full opportunity to prove the existence of continuing treatment or continuing course of conduct, Judge Tobin continued the pending motions for summary judgment until completion of Harley's deposition.

Subsequently, the trial court, Hiller, J., granted the defendants' motions for summary judgment, concluding that there was no evidence that the defendants had engaged in a continuing course of conduct or treatment of the plaintiff that would toll the operation of the statute of limitations. Thereafter, Judge Tobin granted Kotsoris' motion to preclude expert testimony for failure to disclose an expert in accordance with Practice Book § 13-14, and the plaintiff withdrew the action against her. See also footnote 2 of this opinion. The trial court rendered judgment accordingly, and this appeal followed.

On appeal, the plaintiff claims that the trial court improperly granted the defendants' motions for summary judgment. Conceding that the statute of limitations has run with respect to her claims against Zimmerman, the plaintiff argues that there is a genuine issue of material fact precluding summary judgment in favor of the defendants because Harley's evaluation of the plaintiff's MRI in December, 1999, completed a continuing course of conduct by Associates and the hospital that, pursuant to this court's decisions in Blanchette v. Barrett, 229 Conn. 256, 640 A.2d 74 (1994), and Witt v. St. Vincent's Medical Center, 252 Conn. 363, 746 A.2d 753 (2000), tolled the statute of limitations until that time.⁷ In response, the defendants rely on the Appellate Court's subsequent decision in Golden v. Johnson Memorial Hospital, Inc., 66 Conn.App. 518, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001), and a variety of sister state cases, to demonstrate that Witt and Blanchette are distinguishable because, in this context of multiple consultations by members of the same radiology practice group, each of the two MRI readings in the present case constituted a separate and discrete act, and there was no ongoing provider-patient relationship to toll the statute of limitations under the continuous treatment doctrine. We agree with the defendants.⁸

"As a preliminary matter, we set forth the appropriate standard of review. In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for 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 courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].... Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47, 881 A.2d 194 (2005).

We begin our analysis by narrowing the issues in the present case, a process that starts with the plaintiff's concession that the statute of limitations has expired as to Zimmerman personally. Moreover, we assume that, for purposes of this appeal, Associates, which was Zimmerman's employer, functioned as the hospital's radiology department, and therefore, was its agent. We also assume, without deciding, that Associates and the hospital may be held vicariously liable for Zimmerman's negligence, notwithstanding the fact that any claims against her personally are time barred.⁹ We, therefore turn to an examination of the continuous treatment doctrine and the continuing course of conduct doctrine, to determine whether the statute of limitations was tolled as to Associates and the hospital, by virtue of the plaintiff's initial interaction with Zimmerman in 1996, and subsequent assessment by Harley in 1999.¹⁰

In the present case, § 52-584, which is the statute of limitations applicable to health care malpractice, requires actions to be brought "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 also sets a repose period under which "no such action may be brought more than three years from the date of the act or omission complained of," which, in this case, was April 10, 1996. Under § 52-584, "the relevant date of the act or omission complained of ... is the date when the negligent conduct of the defendant occurs and ... not the date when the plaintiff first sustains damage.... In the medical malpractice context, we have specifically determined that a lawsuit commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations, § 52-584, regardless of whether the plaintiff had not or, in the exercise of care, could not reasonably have discovered the nature of the injuries within that time period.... We have also recognized, however, that the statute of...