Connecticut Continuing Course of Conduct Doctrine Medical Malpractice
The Connecticut Supreme Court held in its opinion filed on September 25, 2018: "although we conclude that the trial court correctly determined that the record in the present case does not support application of the continuing course of treatment doctrine, we agree with the plaintiffs that the trial court improperly denied the plaintiffs' request to conduct limited discovery or for an evidentiary hearing to resolve disputed jurisdictional facts related to their claim that the repose period was tolled by the continuing course of conduct doctrine."
The Underlying Facts
The decedent was admitted to the defendant hospital for surgery, after which the defendant physician's assistant ordered an x-ray of the decedent's chest. The defendant radiologist interpreted the x-ray and reported that the decedent had a condition indicative of congestive heart failure and also had a mass in one of her lungs indicative of lung cancer. The radiologist's findings allegedly were called to the hospital floor and a nurse's note in the decedent's hospital record indicated that the x-ray results were received at approximately 2:30 p.m. on November 5, 2007, and communicated to the defendant physician's assistant.
One week later, the defendant physician's assistant dictated a discharge summary for the decedent that referred to her congestive heart failure but not to the defendant radiologist's diagnosis of a mass in one of the decedent's lungs. The decedent died of lung cancer in 2014. The plaintiffs commenced their Connecticut medical malpractice wrongful death lawsuit against the defendants shortly thereafter, alleging that the decedent's death was the direct result of the defendants' continuing failure to notify the decedent about the mass even though they all were aware of it.
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. The trial court dismissed the plaintiffs' Connecticut medical malpractice wrongful death lawsuit, and the plaintiffs appealed.
Connecticut Supreme Court Opinion
The Connecticut Supreme Court held that 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, the Connecticut Supreme 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.
Continuous Course of Conduct Doctrine And Continuous Course Of Treatment Doctrine
The Connecticut Supreme Court further held that the trial court correctly concluded that the record in the present case did not support application of the continuing course of treatment doctrine because it was undisputed that the decedent never was advised by any of the defendants that the defendant radiologist 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 the decedent for the mass or monitored it following her discharge from the hospital.
The Connecticut Supreme Court further held that 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 the decedent'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 the defendant radiologist when he called the hospital floor, the information that the defendant radiologist may have conveyed to that employee, the information that the employee may have in turn conveyed to the defendant physician's assistant, whether the decedent's X-ray or the defendant radiologist's X-ray report was ever sent to any of the decedent's health-care providers and, if so, when and to whom it was sent.
Source Angersola v. Radiologic Associates of Middletown, P.C., SC 19619, SC 19749.
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Source: https://medicalmalpracticelawyers.com/connecticut-supreme-court-applies-continuous-course-of-conduct-doctrine-in-medical-malpractice-appeal/
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