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

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

SC 19619

SC 19749

Supreme Court of Connecticut

Argued October 10, 2017

September 25, 2018

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

Syllabus

The plaintiffs, who sought damages pursuant to statute (§ 52-555) for the allegedly wrongful death of their decedent, P, appealed from the judgment of the trial court, which granted the defendants' motions to dismiss on the ground that the plaintiffs failed to commence their action within the five year repose period set forth in § 52-555. P had been admitted to the defendant hospital for surgery, after which the defendant physician's assistant, T, ordered an X-ray of P's chest. The defendant radiologist, W, interpreted the X-ray and reported that P had a condition indicative of congestive heart failure and also had a mass in one of her lungs indicative of lung cancer. W's findings allegedly were called to the hospital floor. Moreover, a nurse's note in P's hospital file indicated that P's X-ray results were received at approximately 2:30 p.m. on November 5, 2007, and communicated to T at that time. One week later, T dictated a discharge summary for P that referred to P's congestive heart failure but not to W's diagnosis of a mass in one of P's lungs. P died of lung cancer in 2014, and the plaintiffs commenced their action against the defendants shortly thereafter, alleging that P's death was the direct result of, inter alia, the defendants' continuing failure to notify P about the mass even though they all were aware of it. After the defendants filed their motions to dismiss on the ground that the plaintiffs' failure to file their action within the five year repose period deprived the trial court of subject matter jurisdiction, the plaintiffs filed a motion for limited discovery, claiming that the repose period of § 52-555 had been tolled as to all defendants in accordance with the continuing course of conduct and the continuing course of treatment doctrines and that, when a determination of subject matter jurisdiction turns on disputed issues of fact, a case cannot properly be decided on a motion to dismiss unless the plaintiff is afforded an opportunity to establish such facts either through discovery or an evidentiary hearing. The trial court denied the plaintiffs' motion for limited discovery. In granting the defendants' motions to dismiss, the trial court concluded that the plaintiffs' failure to file within the five year repose period was a jurisdictional bar to their action and that the record did not support application of either the continuing course of conduct or the continuing course of treatment doctrine. On appeal from the trial court's judgment, held:

1. The trial court correctly determined that the failure to comply with the repose provision of § 52-555 deprives a trial court of subject matter jurisdiction over an action brought pursuant to that statute; the plaintiffs provided no new or otherwise persuasive reason for this court to reconsider its determination in Blakely v. Danbury Hospital (323 Conn. 741) that the legislature had acquiesced in this court's conclusion in Ecker v. West Hartford (205 Conn. 219) that, because § 52-555 created liability when none previously existed, the repose period set forth therein was a jurisdictional prerequisite that could not be waived and that was required to be met in order to maintain an action under that statute.

2. Contrary to the defendants' claim, the plaintiffs could invoke the continuing course of conduct and continuing course of treatment doctrines as a basis for extending the repose period set forth in § 52-555; because, under the continuing course of conduct doctrine, a limitations period does not begin to run until the course of conduct is completed, and because, under the continuing course of treatment doctrine, a limitations period does not begin to run until the treatment is terminated, a claim does not arise under those doctrines until the defendant's allegedly tortious conduct ceases, and, in such circumstances, this court saw no reason why those doctrines should not apply to statutorily created causes of action, such as a wrongful death action brought pursuant to § 52-555, merely because the applicable limitations period is substantive rather than procedural or why the legislature would disapprove of the application of those doctrines to such causes of action.

3. The plaintiffs properly preserved their claim for an evidentiary hearing to address disputed issues of fact in support of their tolling claims; although the plaintiffs claimed that their complaint alone was sufficient to establish the trial court's jurisdiction over their action, they also claimed that a hearing would be necessary if the court did not agree with that claim, and the plaintiffs brought this matter to the court's attention in a motion to reargue the granting of the defendants' motions to dismiss.

4. The trial court correctly concluded that the record in the present case did not support application of the continuing course of treatment doctrine; the plaintiffs could not prevail under that doctrine because it was undisputed that P never was advised by any of the defendants that W had diagnosed a mass in one of her lungs, and, therefore, she could not possibly have expected the defendants to provide ongoing treatment for it, and the plaintiffs did not allege or present evidence to establish that the defendants actually treated P for the mass or monitored it following her discharge from the hospital.

5. The trial court improperly denied the plaintiffs' request for limited discovery or for an evidentiary hearing before it ruled on the motions to dismiss, in order to resolve disputed jurisdictional facts related to their claim that the repose period of § 52-555 was tolled by the continuing course of conduct doctrine, and, accordingly, the trial court's judgment was reversed and the case was remanded for further proceedings: the trial court could not resolve the issue of whether the repose period of § 52-555 was tolled by the continuing course of conduct doctrine without conducting an evidentiary hearing or allowing the plaintiffs to conduct limited discovery directed toward establishing the court's jurisdiction, as the factual issues concerning the question of whether § 52-555 was tolled by that doctrine, including whether the defendants knew about the mass in P's lung prior to the expiration of the statute of repose, were in dispute; moreover, the plaintiffs should be afforded the right to explore, through either limited discovery or an evidentiary hearing, the identity of the hospital employee who spoke with W when he called the hospital floor, the information that W may have conveyed to that employee, the information that the employee may have in turn conveyed to T, whether P's X-ray or W's X-ray report was ever sent to any of P's health-care providers and, if so, when and to whom it was sent.

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.).

Opinion

PALMER, J. The plaintiffs in this wrongful death action, Susan Angersola and Kathleen Thurz, coexecutors 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...