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Byrdsong v. Radiology Associates of Hartford, P.C

Superior Court of Connecticut, Judicial District of Hartford, Hartford

October 26, 2015

Deitra Byrdsong
v.
Radiology Associates of Hartford, P.C

Filed Date October 29, 2015

MEMORANDUM OF DECISION RE MOTION TO DISMISS, #106

PETER EMMETT WIESE, JUDGE.

Procedural History

On November 14, 2014, [1] the plaintiff, Deitra Byrdsong, Executrix of the Estate of Arlene Thaxton, filed a one-count complaint against the defendant, Radiology Associates of Hartford, P.C. The complaint alleges a wrongful death claim, presumably pursuant to General Statutes § 52-555, based on the alleged medical malpractice by the defendant's employee and/or agent, George E. Wislo, M.D. More specifically, the complaint alleges the following facts.

On June 4, 2004, Scheuster Christie, M.D., performed a sigmoid resection surgery on Arlene Thaxton at Saint Francis Hospital and Medical Center. On June 12, 2004, Christie readmitted Thaxton for a small bowel obstruction. On June 18, 2004, resident Biju Lukose, M.D., ordered a computerized tomography (CT) scan of the lungs because Thaxton was short of breath.[2]

The hospital radiologist, George E. Wislo, M.D., [3] reported a " small spiculated mass left lung apex representing either small tumor or scarring. Otherwise three small nodules posteriorly in lower right lung." Despite this report, Wislo did not discuss these findings or the possibility of lung cancer with any of the physicians treating Thaxton. Furthermore, even though Thaxton remained in Saint Francis Hospital and Medical Center until June 30, 2004, no one at the hospital ever followed up on the significant findings, or the CT scan, or checked for lung cancer.

On July 30, 2012, a chest x-ray revealed a large left upper lobe mass in Thaxton's lung.

After further testing, Thaxton was diagnosed with lung cancer, with metastasis to the liver and tail of the pancreas. Thaxton remained sick and in great pain until her death on January 26, 2013.

The defendant, including its agent and/or employee, Wislo, was negligent in the following ways: failing to properly communicate the findings of the June 18, 2004 CTA of the chest with the ordering physician, primary care physician, and/or surgeon; failing to determine if any treating physician was following up on the serious findings of the CTA; failing to confirm that appropriate steps were taken for the patient based on the CTA findings; failing to document that a treating physician was aware of these serious findings; failing to recommend follow-up exams or treatment; failing to properly communicate danger of cancer to plaintiff; failing to discuss with a treating physician the danger of cancer; failing to follow proper procedures for communicating findings; and failing to have proper procedures in place for communicating findings. As a result of this negligence, Thaxton's lung cancer went undiagnosed and untreated for many years, and her cancer grew and spread within her body, causing pain, suffering, and, ultimately, death.

Attached to the complaint is a letter, dated November 6, 2014, from a licensed physician and practicing radiologist, who is board certified in radiology and nuclear medicine.[4]

On January 9, 2015, the defendant filed a motion to dismiss, with the affidavit of Michael Twohig, M.D., attached. On January 13, 2015, the plaintiff filed an objection to the motion to dismiss. As exhibits to the objection, the plaintiff submitted a copy of the diagnostic report of the CTA chest exam from Wislo, dated June 18, 2004, and the same opinion letter that is attached to the complaint. On February 11, 2015, the defendant filed a reply to the objection. On July 27, 2015, the plaintiff filed a supplemental objection to the motion to dismiss. Finally, on July 30, 2015, the defendant filed a supplement to the motion to dismiss. In support, the defendant attached the affidavit of Georgia Camilleri and the affidavit of Scheuster Christie. This matter was heard at short calendar on July 20, 2015.

II

DISCUSSION

" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for ...


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