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Angersola v. Radiologic Associates of Middletown, P.C.

Supreme Court of Connecticut

September 25, 2018

SUSAN ANGERSOLA, COEXECUTOR (ESTATEOF PATRICIA SIENKIEWICZ), ET AL.
v.
RADIOLOGIC ASSOCIATES OF MIDDLETOWN, P.C., ET AL.

          Argued October 10, 2017

         Procedural History

         Action to recover damages for, inter alia, the wrongful death of the plaintiffs' decedent, and for other relief, brought to the Superior Court in the judicial district of Middlesex, where the defendants filed motions to dismiss; thereafter, the court, Domnarski, J., denied the plaintiffs' motion for limited discovery; subsequently, the plaintiffs commenced a separate action to recover damages for, inter alia, wrongful death, and for other relief; thereafter, the court, Aurigemma, J., granted the defendants' motion to consolidate the two actions; subsequently, the court, Aurigemma, J., granted the defendants' motions to dismiss the first action, and the plaintiffs appealed; thereafter, the court, Aurigemma, J., granted the defendants' motions to dismiss the second action, and the plaintiffs filed a separate appeal. Reversed; further proceedings in Docket No. SC 19619; appeal dismissed in Docket No. SC 19749.

          Carey B. Reilly, with whom, on the brief, was Cynthia C. Bott, for the appellants (plaintiffs).

          Michael G. Rigg, with whom, on the brief, was Donna R. Zito, for the appellees (named defendant et al.).

          John F. Costa, with whom, on the brief, was Liam M. West, for the appellee (defendant Middlesex Hospital).

          Ellen M. Costello, for the appellees (defendant Shoreline Surgical Associates, P.C., et al.).

          Palmer, McDonald, Robinson, D'Auria and Vertefeuille, Js. [*]

          OPINION

          PALMER, J.

         The plaintiffs in this wrongful death action, Susan Angersola and Kathleen Thurz, coexecu-tors of the estate of the decedent, Patricia Sienkiewicz, appeal from the judgment of the trial court, which granted the motions to dismiss filed by the defendants, Radiologic Associates of Middletown, P.C. (Radiologic Associates), Robert Wolek, Middlesex Hospital, Shoreline Surgical Associates, P.C. (Shoreline), and Eileen Tobin, on the ground that the plaintiffs failed to commence their action within the five year repose period of General Statutes § 52-555, [1] this state's wrongful death statute.[2] The plaintiffs first claim that the trial court incorrectly concluded that compliance with that repose provision is a prerequisite to the court's jurisdiction over the action. They further claim that the trial court improperly resolved disputed jurisdictional facts without affording them an opportunity either to engage in limited discovery or to present evidence in connection with their contention that the repose period had been tolled by the continuing course of conduct doctrine or the continuing course of treatment doctrine.[3] Although we reject the plaintiffs' jurisdictional claim, we agree with their second claim insofar as the continuing course of conduct doctrine is concerned. Accordingly, we reverse the trial court's judgment.[4]

         The following facts and procedural history are relevant to our resolution of the plaintiffs' claims. On November 1, 2007, the decedent was admitted to Middlesex Hospital by her surgeon, Jonathan Blancaflor, an employee of Shoreline, for laparoscopic gastrointestinal surgery. On November 5, 2007, while the decedent was recovering from that surgery, Eileen Tobin, a physician's assistant also employed by Shoreline, ordered an X-ray of the decedent's chest. Robert Wolek, a radiologist employed by Radiologic Associates, which provides radiological services for Middlesex Hospital, interpreted the X-ray and dictated a report of his findings. The report was transcribed at 4:29 p.m. on November 5, 2007, and edited, approved, and electronically signed by Wolek at 10:52 p.m. that same day. In addition to reporting the presence of pulmonary opacities indicative of ‘‘congestive heart failure, '' Wolek also reported the presence of a separate ‘‘1.8 [centimeter] spiculated density in the left upper lung, '' indicative of lung cancer. Wolek recommended that the mass be investigated further by ‘‘[c]orrelation with older studies, '' if available, and by a computerized tomography (CT) scan. Wolek's report indicates that his findings were ‘‘called to the [hospital] floor at the time of the reading.'' A nurse's note in the decedent's hospital file indicates that the decedent's X-ray results were received at approximately 2:30 p.m. on November 5, 2007, and communicated to Tobin at that time.

         On November 12, 2007, Tobin dictated a discharge summary for the decedent's medical file, in which she specifically referenced Wolek's findings regarding the decedent's congestive heart failure but not his diagnosis of a spiculated density in her left lung. Approximately four and one-half years later, on April 6, 2012, a CT scan of the decedent's lungs revealed a large neoplasm in the upper left lobe measuring 5.4 by 4 by 6.6 centimeters. The decedent died from stage IV lung cancer approximately two years later, on June 8, 2014.

         On July 7, 2014, the plaintiffs commenced this action, alleging that the decedent's death was the direct result of the defendants' failure, or the failure of their agents or employees, to exercise reasonable care in a number of respects, including but not limited to their continuing failure to notify the decedent about the suspicious mass in her left lung even though they all were aware of the condition. Shortly thereafter, the defendants filed motions to dismiss for lack of subject matter jurisdiction, in which they argued that, because a wrongful death action is a statutorily created right of action that did not exist at common law, the plaintiffs' failure to commence the action within the five year statutory repose period deprived the court of subject matter jurisdiction over the plaintiffs' claims. See, e.g., Karp v. Urban Redevelopment Commission, 162 Conn. 525, 529, 294 A.2d 633 (1972) (‘‘the general rule [is] that a time limitation on the enforcement of a right, created by statute and not existing at common law, is a part of the right and must be met in order to provide a court with jurisdiction to hear the cause of action''). Tobin also filed an affidavit in which she stated that she provided no care for the decedent after November 5, 2007, never received a telephone call or any other form of communication from Wolek regarding the results of the decedent's November 5, 2007 X-ray, never was informed by anyone that Wolek had diagnosed a mass in the decedent's lung, and never saw or was provided a copy of Wolek's X-ray report.

         In response, the plaintiffs filed a motion for limited discovery in which they asserted, inter alia, that the repose period had been tolled as to all of the defendants in accordance with the continuing course of conduct and continuing course of treatment doctrines. They further asserted that, under Conboy v. State, 292 Conn. 642, 974 A.2d 669 (2009), when a determination of subject matter jurisdiction turns on disputed issues of fact, the case cannot properly be decided on a motion to dismiss unless the plaintiff is afforded an opportunity to establish such facts either via discovery or an evidentiary hearing. Id., 652; see also id. (‘‘[when] a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts''). The plaintiffs also outlined the discovery that they believed was necessary for them to establish the court's jurisdiction through the application of tolling doctrines. Specifically, the plaintiffs sought to discover, among other things, the name of the person from Wolek's office, if it was not Wolek himself, who called the hospital floor to report the decedent's X-ray results, the name of the person who took that call, and the information that was imparted to him or her during the call. The plaintiffs also sought discovery related to Wolek's and Radiologic Associates' general practices for communicating X-ray results and whether the decedent's X-ray results were ever transferred to the decedent's hospital chart, to Tobin, or to any of the decedent's other health-care providers. Following argument on the plaintiffs' motion for limited discovery, the trial court, Domnarski, J., denied the motion, explaining that Kelly v. Albertsen, 114 Conn.App. 600, 608, 970 A.2d 787 (2009), barred such discovery prior to a ruling on the defendants' motions to dismiss.[5]

         Thereafter, the plaintiffs filed a brief in opposition to the defendants' motions to dismiss, claiming that compliance with the five year repose provision of § 52-555 is not a jurisdictional prerequisite and that, even if it were, the allegations set forth in their complaint, when viewed in the light most favorable to the plaintiffs, were sufficient for jurisdictional purposes. The plaintiffs also argued that, ‘‘[t]o the extent the court in making this jurisdictional determination considers anything other than the factual allegations contained in the plaintiffs' complaint, the plaintiff[s] [request] an evidentiary hearing to address any critical disputed issues of fact. . . . At present, the only ‘evidentiary' information submitted by the defendants is the self-serving affidavit of [Tobin], which should be discounted in its entirety.''

         Subsequently, the trial court, Aurigemma, J., heard argument on this issue. At that time, Tobin, Shoreline and Middlesex Hospital all argued that the continuing course of conduct doctrine was inapplicable to them because, among other reasons, none of them was aware, prior to the expiration of the repose period, that Wolek had diagnosed a mass in the decedent's left lung. See Grey v. Stamford Health System, Inc., 282 Conn. 745, 756, 924 A.2d 831 (2007) (for continuing course of conduct doctrine to apply, plaintiff must prove that defendant had actual knowledge of plaintiff's need for ongoing treatment or monitoring). For their part, Wolek and Radiologic Associates claimed that Wolek had fulfilled his duty to the decedent by correctly diagnosing the mass and reporting his diagnosis to the hospital floor. Finally, all of the defendants asserted that the continuing course of treatment doctrine was inapplicable because none of them had provided the decedent with ongoing treatment for any identified condition following her discharge from the hospital. See id., 754 (to establish continuous course of treatment, plaintiff is required to prove, among other things, that she had an identified medical condition requiring ongoing treat- ment or monitoring and that defendants provided such treatment or monitoring).

         In response, the plaintiffs reiterated their claims that the motions to dismiss must be denied because the limitation period of § 52-555 does not implicate the court's subject matter jurisdiction and that, even if it does, the allegations of the complaint raised a genuine issue of material fact as to whether the defendants knew about the mass in the decedent's lung prior to the expiration of the statutory repose period. Specifically, the plaintiffs' counsel argued: ‘‘Factually, this case poses a very interesting scenario. We have, in this case, a chest X-ray that was taken on November 5, 2007. It was interpreted by . . . Wolek . . . . In his radiology report, [he] indicate[d] that he [found], in addition to findings consistent with congestive heart failure . . . a 1.8 centimeter spiculated mass . . . suggestive of cancer in the left lung. . . . [I]n their brief, [Wolek and Radiologic Associates] say not only did [Wolek] identify it but [that] he circled it on the film . . . so that other health-care providers, looking at the film, would be able to clearly see what was . . . there. In their [brief], they [also] say [that Wolek] was so . . . concerned about [the mass] that he wanted to pass [the information] on . . . to the [physician's assistant] who [had] ordered the film, and the way he did that was he called down to the [hospital] floor, [and] apparently spoke to a nurse because there's a record [of their conversation] in the chart. I can't tell you who the nurse was [because] I can't read her signature, but that [call occurred at] about 2:30 . . . that afternoon. And the nurse, in the [chart], indicates [that she] passed [the information] on . . . to . . . Tobin. So, [we have] actual knowledge of Wolek, actual knowledge of [the] agent, servant, or employee of the hospital, and actual knowledge of Tobin. . . . Now, in her self-serving affidavit . . . Tobin says, ‘nobody told me anything. I didn't know.' . . . [As] Wolek . . . points out, [however], she had to know because, in the discharge summary . . . she indicates . . . [that the] X-ray [revealed] . . . evidence of congestive heart failure. So, clearly, she was aware of at least some of the findings on the chest X-ray. This is all fodder for the jury. [It] is . . . for the jury to decide who knew what and when.''

         After argument, the trial court granted the defendants' motions to dismiss. As a threshold matter, the court, relying primarily on Ecker v.West Hartford, 205 Conn. 219, 231-32, 530 A.2d 1056 (1987), concluded that compliance with the repose provision of ยง 52-555 is a jurisdictional prerequisite to suit and rejected the plaintiffs' contention to the contrary. The court also agreed with the defendants that the record did not ...


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