Argued
December 11, 2018
Procedural
History
Action
to recover damages for the wrongful death of the
plaintiff's decedent as a result of the defendants'
alleged medical malpractice, brought to the Superior Court in
the judicial district of Hartford, where the court, Elgo, J.,
granted the defendants' motion to dismiss and rendered
judgment thereon, from which the plaintiff appealed to this
court. Affirmed.
Juri
E. Taalman, with whom, onthe brief, was David W. Bush, for
the appellant (plaintiff).
James
M. Belforti, assistant attorney general, with whom, on the
brief, was George Jepsen, former attorney general, for the
appellees (defendants).
DiPentima, C. J., and Sheldon and Prescott, Js.
OPINION
PRESCOTT, J.
The
plaintiff, Sandra Harvey, administratrix of the estate of
Isaiah Boucher, appeals from the judgment of the trial court
dismissing the wrongful death action filed against the
defendants, the Department of Correction and the University
of Connecticut Health Center Correctional Managed Health
Care, to which we collectively refer in this opinion as the
state. On July 16, 2015, the Claims Commissioner (claims
commissioner) authorized Boucher to bring a medical
malpractice action against the state. Boucher, however, died
during September, 2015, without having filed an action, and
the plaintiff did not commence the underlying action on
behalf of Boucher's estate until more than one year
later. The state filed a motion to dismiss the action because
it was untimely pursuant to General Statutes § 4-160
(d), [1] which requires a party who is granted
authorization by the claims commissioner to sue the state to
do so within one year from the date such authorization is
granted. The plaintiff claims on appeal that the court
improperly granted the state's motion to dismiss because
the statute of limitations set forth in General Statutes
§ 52-555 (a), which permits a wrongful death action to
be brought within two years from the date of the
decedent's death, [2] had not expired and is not limited by
§ 4-160 (d). Alternatively, the plaintiff claims that
the one year limitation period prescribed in § 4-160 (d)
was extended in this case by operation of General Statutes
§ 52-594, and, therefore, her action was timely. We
disagree and, accordingly, affirm the judgment of the trial
court.
The
following facts, as set forth by the court in its memorandum
of decision or as taken from the complaint and viewed in a
light most favorable to the plaintiff, are relevant to our
consideration of the present appeal. Boucher became ill and
eventually was diagnosed with oropharyngeal cancer while
incarcerated and in the care and custody of the Department of
Correction. In June, 2013, he underwent ‘‘a
biopsy and surgery for a tracheotomy with a trachlaryngoscopy
. . . .'' In June, 2015, he filed a notice of claim
with the claims commissioner, seeking permission to file a
medical malpractice action against the state.[3] On July 16, 2015,
the claims commissioner rendered a decision authorizing
Boucher to sue the state. In his finding and order, the
claims commissioner indicated that ‘‘[the] grant
of permission to sue is limited to that portion of the claim
alleging malpractice against the state, a state hospital or a
sanitarium or against a physician, surgeon, dentist,
podiatrist, chiropractor, or all other licensed health care
providers employed by the state.'' (Internal
quotation marks omitted.)
Boucher
died on September 26, 2015, as a result of the progression of
his cancer. On March 23, 2016, the plaintiff was appointed as
the administratrix of Boucher's estate. In that capacity,
on September 29, 2016, the plaintiff commenced the underlying
action against the state.
The
state filed a motion to dismiss the action on November 1,
2016. The state asserted in its motion that, pursuant to
§ 4-160 (d), the plaintiff's claims were time barred
and should be dismissed. Specifically, the state argued that
§ 4-160 (d) requires a plaintiff who has obtained
authorization to sue the state from the claims commissioner
to bring an action within one year from the date that the
commissioner grants authorization. Here, the plaintiff filed
the action seventy-three days beyond that one year limitation
period, and, thus, the state claimed that the action was
untimely and barred by sovereign immunity.
The
plaintiff filed an objection and a memorandum of law in
opposition to the motion to dismiss. According to the
plaintiff, because § 52-555 creates a statutory cause of
action for wrongful death that did not exist at common law,
that statute must be strictly construed, and the two year
statute of limitations embodied in the statute cannot be
extended, modified or enlarged in scope.[4] In other words,
the plaintiff argues that despite the clear and unambiguous
language of § 4-160 (d) requiring an action to be
brought within one year of obtaining authorization from the
claims commissioner, she had ‘‘within two years
from the date of death'' of Boucher to commence a
wrongful death action, and, therefore, her action was timely
despite any noncompliance with § 4-160 (d). According to
the plaintiff, the one year statutory period for filing a
claim against the state is inoperative under the present
circumstances and cannot be construed properly to reduce the
time period for filing her wrongful death action.
The
trial court, Elgo, J., agreed with the state's
position and granted the motion to dismiss in a memorandum of
decision filed on June 21, 2017. The court noted that any
waiver of the state's sovereign immunity must be narrowly
construed, and, thus, any statutory limitation period placed
on bringing an action against the state must also be strictly
applied. The court concluded that ‘‘the
plaintiff, in attempting to bring a statutory cause of action
against the state, must comply with two time limitations: (1)
the one year limitation to bring suit after authorization is
given to sue; and (2) the original statute of limitations on
the underlying cause of action. Failure to comply with either
deprives the court of subject matter jurisdiction and is
grounds for dismissal. . . . Given that the plaintiff's
authorization to sue ended on July 16, 2016, and the
plaintiff commenced this action after that date, this court
lacks subject matter jurisdiction.''[5]
The
plaintiff filed a motion for reconsideration and reargument
on July 10, 2017. In that motion, the plaintiff argued for
the first time that the one year limitation period of §
4-160 (d) was extended by operation of § 52-594, which
provides in relevant part that ‘‘[i]f the time
limited for the commencement of any personal action, which by
law survives to the representative of a deceased person, has
not elapsed at the time of the person's death, one year
from the date of death shall be allowed to his executor or
administrator to institute an action therefor. . .
.'' According to the plaintiff, at the time Boucher
died on September 26, 2015, his authorization to bring an
action against the state had not expired and, therefore,
under § 52-594, the plaintiff should have had until
September 26, 2016, to bring an action. The state filed a
memorandum in opposition to ...