Appeal by plaintiff Geraldine Hamilton, personally and as representative of the estate of her deceased husband, from dismissal of her medical malpractice action against defendants Dr. Smith, St. Francis Hospital and the hospital's pathologist by the United States District Court for the District of Connecticut (Clarie, J.) on the grounds that the action was barred by Connecticut General Statute § 52-584. Reversed and remanded.
Before: LUMBARD, OAKES and CARDAMONE, Circuit Judges.
CARDAMONE, Circuit Judge:
On this appeal from summary judgment dismissing plaintiff's medical malpractice suit, we must analyze a section of Connecticut's statute of limitation. Strong public policy considerations generally mandate that a plaintiff promptly assert his claim. Defendants contend that when a state legislature enacts a statute of repose it is well aware that such rule will on occasion produce a harsh result. And, defendants continue, for courts to strain to find exceptions to the legislature will simply fuel endless or limitless litigation. Yet, here, as plaintiff points out, the construction of the statute's two-year suit requirement adopted by the court below effectively extinguished his right to sue before he even knew he had a claim. We do not think it the purpose of this part of Connecticut's statute of limitations that the game be over before a plaintiff has had his innings. Hence, we reverse and remand this case to the district court.
In 1956 John Hamilton had an accident at work in which he injured his left thumbnail. Three years later, in November 1959, defendant Dr. Smith treated him for that injury. Dr. Smith diagnosed the problem as a chronic paronychia, an inflammation accompanied by an infection, and performed a localized excision of part of the thumbnail. In 1965 - after six more years had elapsed - Hamilton was admitted to defendant St. Francis Hospital. Dr. Smith operated and sent a tissue sample of Hamilton's thumbnail to the Hospital pathology department. After a hospital pathologist analyzed it, he reported to Dr. Smith that Hamilton's condition was a paronychia. This diagnosis was wrong.
For about six months following Hamilton's discharge, Dr. Smith saw him for routine check-ups. During the ensuing eight years, from 1965 through 1973, Hamilton visited Dr. Smith three times. On those occasions the doctor visually examined the thumbnail, but recommended no further treatment. Plaintiff has alleged that on the most recent visit, he pointed out to Dr. Smith that nodules had begun to appear on his thumb. Smith denies that any nodules then existed.
In 1973 Hamilton retired and moved to Florida. Two years later he consulted a Florida doctor about lumps that had formed on his left thumb. That doctor performed a biopsy and found malignant melanoma, a form of cancer. In December 1975 doctors amputated Hamilton's left thumb. On March 5, 1976 Hamilton's attorney in Connecticut wrote a letter to Dr. Smith seeking information about the earlier treatment of the thumbnail in order to prepare a workers' compensation claim against Hamilton's former employer. The attorney wrote that Hamilton "has continued to have problems with his thumb and recently it had to be amputated because of a cancerous condition which had arisen and which his present physician feels is related to the original injury." Dr. Smith responded and provided the history of his treatment of Hamilton.
Over the next three years the Florida doctors found that the cancer was spreading. On December 12, 1978 Hamilton filed an updated workers' compensation claim against his former employer. He claimed that the newly discovered cancer was related to the prior work injury to his thumbnail. At the workers' compensation hearing held on May 18, 1979 Hamilton learned that the Connecticut Hospital had kept slides of the tissue samples tested back in 1965. Prior to the hearing, the Hospital had reviewed its slides and discovered that Hamilton's malignant melanoma was evident at the time of its 1965 examination of the tissue. Thus, Hamilton's condition had been misdiagnosed in 1965 - Hamilton had cancer, not simply an infection.
Hamilton's cancer continued to spread, and on March 5, 1980 he died. In 1980 his wife, Geraldine Hamilton, personally and as personal representative of his estate, brought the present action in the United States District Court for the District of Connecticut (Clarie, J.). She alleged that Dr. Smith, the hospital pathologist, and the Hospital as the pathologist's employer, were negligent in failing to diagnose and treat her husband for malignant melanoma. She alleged that the defendants fraudulently concealed their acts of medical malpractice, in particular the misdiagnosis of her husband's condition. The defendants denied the allegations and moved for summary judgment on the ground that the plaintiff's claims were barred by the Connecticut statute of limitations, Conn. Gen. Stat. § 52-584.
The district court at first denied the summary judgment motion stating that there remained a genuine issue of fact as to when the decedent learned that he had malignant melanoma. Upon reconsideration the court granted summary judgment in favor of defendants because it concluded that since Hamilton learned that he had cancer late in 1975, "almost four and one-half years before this action was commenced . . ., the suit [was] barred by Connecticut General Statutes, § 52-584." Hamilton v. Smith, No. H-80-242, slip op. at 2 (D. Conn. Oct. 4, 1984). Based upon his conclusion that Hamilton discovered his physical injury in 1975, the district court then held that after that time there was no continuing course of negligent conduct and no fraudulent concealment of plaintiff's right of action. The court also rejected plaintiff's claim that § 52-584 unconstitutionally denies litigants access to state courts in violation of the Connecticut Constitution art. I, § 10 and the 14th Amendment of the United States Constitution.
The applicable statute of limitations in this diversity malpractice case is the Connecticut statute of limitations, Conn. Gen. Stat. § 52-584.*fn1 See Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). That statute applies to all actions to recover damages for injury to the person or to property caused by negligence, reckless or wanton misconduct, or malpractice. Two specific time requirements are imposed on prospective plaintiffs. The first 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 ...