In its written decision released on December 9, 2014, a Connecticut Appellate Court applied the “continuous wrong” exception to its statute of repose, thereby allowing a medical malpractice plaintiff to proceed with her medical malpractice claim against a bariatric surgeon that arose from her open gastric bypass surgery that was performed in December 2003. The plaintiff had follow-up appointments with the same surgeon between 2004 and May 2009.
About one year after the original surgery, the plaintiff began complaining to the surgeon regarding abdominal pain with bowel movements and constipation. On August 6, 2009, the plaintiff had a CT scan of her chest, abdomen, and pelvis after being diagnosed with breast cancer by another physician, which showed foreign material in her abdominal cavity. During the September 9, 2009 appointment with the bariatric surgeon, he advised the plaintiff that the foreign object in her abdominal cavity was a surgical sponge left behind during the December 8, 2003 surgery.
On August 5, 2010, the plaintiff filed her medical malpractice lawsuit against the bariatric surgeon and the hospital where the surgery took place. The defendants moved for summary judgment, arguing that the plaintiff’s claim of medical negligence against them was time barred and that the statute of repose in Section 52-584 was not tolled by the continuing course of conduct doctrine or the continuing treatment doctrine, among other arguments. The trial court granted the defendants’ motions for summary judgment and the plaintiff appealed.
Section 52-584 requires that medical malpractice actions 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. The statute also establishes 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. 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. Therefore, an action commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations contained in Section 52-584, regardless of whether the plaintiff had not, or in the exercise of reasonable care could not, reasonably have discovered the nature of the injuries within that time period.
Nonetheless, the Connecticut Supreme Court has recognized that the statute of limitations and repose section contained in Section 52-584 may be tolled, in the proper circumstances, under either the continuing course of conduct doctrine or the continuing treatment doctrine, thereby allowing a plaintiff to bring an action more than three years after the commission of the negligent act or omission complained of.
Continuing Course Of Conduct Doctrine
The Connecticut Supreme Court has established a three-part test for determining whether the statute has been tolled due to a continuing course of conduct: the plaintiff must prove that the defendant physician (1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the original wrong; and (3) continually breached that duty.
To satisfy the second part of the test, the plaintiff must demonstrate that the defendant breached a duty related to the negligent act or omission complained of, which duty remains in existence after commission of the original wrong (that duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong), which typically involves either a special relationship between the parties giving rise to a continuing duty or some later wrongful conduct by a defendant that is related to the prior act.
In the case it was deciding, the Connecticut Appellate Court held that the plaintiff did not submit evidence sufficient to create a genuine issue of material fact as to whether the defendant surgeon continually breached a duty owed to her at some point after the commission of the original alleged wrong (e.g., the plaintiff did not submit expert testimony on the issue of whether the defendant surgeon’s failure to order exploratory tests did not meet the applicable standard of care, and therefore there was no evidence that, after the initial surgery, the defendant surgeon’s conduct failed to meet the applicable standard of care).
Continuing Treatment Doctrine
Under the continuing treatment doctrine, for purposes of tolling the statute of repose set forth in Section 52-284, the plaintiff must establish: (1) that the plaintiff had an identifiable medical condition that required ongoing treatment or monitoring; (2) that the defendant provided treatment or monitoring of that condition after the allegedly negligent conduct, or that the plaintiff reasonably could have anticipated that the defendant would do so; and (3) that the plaintiff brought the action within the appropriate statutory period after the date that treatment terminated.
With regard to the first part of the test, the plaintiff argued that her morbid obesity was an “identifiable medical condition that required ongoing treatment” whereas the defendants argued that a retained surgical sponge is not an identifiable medical condition requiring ongoing treatment. The Connecticut Appellate Court held that the evidence submitted by the plaintiff was sufficient to create a genuine issue of material fact as to whether she had an identifiable medical condition that required ongoing treatment and monitoring.
With regard to the second part of the test, the Connecticut Appellate Court held that there is a genuine issue of material fact as to whether the defendant surgeon provided the plaintiff with ongoing treatment and monitoring for the condition of morbid obesity.
The Connecticut Appellate Court held that there was evidence sufficient to create a genuine issue of material fact as to whether the continuing treatment doctrine applied to toll the statute of repose set forth in Section 52-584, and therefore it was error for the trial court to have granted summary judgment to the defendants on that claim.
The Difference Between The Continuing Treatment Doctrine And The Continuing Course Of Conduct Doctrine
The Connecticut Appellate Court stated that the continuing treatment doctrine focuses on the plaintiff’s reasonable expectation that the treatment for an existing condition will be ongoing, while the continuing course of conduct doctrine focuses on the defendant’s duty to the plaintiff arising from his knowledge of the plaintiff’s condition.
Foreign Object Exception
The Connecticut Appellate Court stated that Connecticut courts have not recognized a foreign object exception to Section 52-584, unlike some U.S. states that have legislatively enacted foreign object exceptions to their respective statutes of limitations for professional negligence claims.
Source Cefaratti v. Aranow, AC 35659.
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