ZIELINSKI v. KOTSORIS, 279 Conn. 312 (2006)

901 A.2d 1207

(SC 17441)Supreme Court of Connecticut

Borden, Norcott, Palmer, Vertefeuille and Zarella, Js.

Syllabus
The plaintiff S sought, in 2001, to recover from the defendant physicians, K and Z, the defendant hospital and its affiliated radiology group, A Co., for alleged medical malpractice in failing to discover the presence of a brain tumor during S’s treatment in 1996. K had diagnosed S with Lyme disease and sent her to the hospital for a magnetic resonance imaging (MRI). Both K and Z reviewed the MRI and failed to detect the tumor. In 1999, following a second MRI, H, another radiologist in A Co., discovered the tumor and also determined that the tumor was visible on the 1996 MRI. S claimed that K and Z negligently failed to detect the tumor

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on the 1996 MRI, and that A Co. and the hospital, as Z’s employers, were liable for Z’s negligence. The defendants moved for summary judgment claiming that S’s action was barred by the expiration of the two year statute of limitations (§ 52-584) applicable to medical malpractice actions. The trial court granted the defendants’ motion, concluding that there was no evidence that the defendants had engaged in a continuing course of conduct or treatment of S so as to toll § 52-584. That court rendered summary judgment in favor of the defendants and, thereafter, S withdrew the action against K. On appeal, S claimed that, although the statute of limitations had run with respect to her claims against Z, there was a genuine issue of material fact that precluded summary judgment because H’s evaluation of S’s MRI in 1999 completed a continuing course of conduct by A Co. and the hospital that tolled § 52-584
until that time. Held that the trial court properly rendered summary judgment for the defendants, that court having correctly determined that there was no genuine issue of material fact as to whether § 52-584 was tolled by the continuing course of conduct doctrine or the continuous treatment doctrine, and, therefore, that S’s action was time barred; S failed to demonstrate that Z or any physician affiliated with A Co. or the hospital had any concern that the 1996 MRI indicated the presence of a tumor, and S’s two isolated contacts with Z and H over the course of three years constituted separate and discrete acts, rather than an ongoing patient-physician relationship, which was not sufficient to support a finding of a continuous treatment relationship or a continuing duty of care.

Argued May 17, 2006.

Officially released August 8, 2006.

Procedural History
Action to recover damages for medical malpractice, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk where the court, Hon. William B. Lewis, judge trial referee, granted the motion to substitute Stamford Radiological Associates, P.C., as a party defendant in place of the defendant Diagnostic Imaging Center, thereafter, the court, Hiller, J., granted the motions to preclude certain evidence and for partial summary judgment filed by the defendant Kristan D. Zimmerman et al. and rendered judgment thereon for those defendants; subsequently, the court Tobin, J., granted the motion to preclude certain evidence filed by the named defendant; thereafter, the

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action was withdrawn as to the named defendant and the plaintiffs appealed. Affirmed.

Anthony B. Corleto, with whom was Joelle M. Ehmka, for the appellants (plaintiffs).

Eric J. Stockman, for the appellee (defendant Stamford Hospital).

Charles W. Fleischmann, with whom, on the brief, wa Garie J. Mulcahey, for the appellees (defendant Kristan D. Zimmerman et al.).

Opinion
NORCOTT, J.

In this appeal, we consider whether the continuous treatment doctrine or the continuing course of conduct doctrine tolls the statute of limitations in a medical malpractice case when the plaintiff’s condition is subsequently diagnosed or treated by a different physician employed by the same corporate entity that had employed the defendant physician at the time of the alleged negligence. The named plaintiff, Shelley Zielinski, brought this medical malpractice action[1] against the defendants, Harriet Kotsoris, [2] Kristan D. Zimmerman, Stamford Radiological Associates, P.C. (Associates), [3] and Stamford Hospital (hospital), alleging that Kotsoris and Zimmerman negligently misdiagnosed her brain tumor as Lyme disease. The plaintiff

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appeals[4] from the trial court’s granting of the defendants’ motions for summary judgment on the basis that those claims were time barred by the expiration of the relevant statute of limitations, specifically General Statutes § 52-584.[5] We affirm the judgment of the trial court.

The record, viewed in the light most favorable to the nonmoving plaintiff for purposes of reviewing the trial court’s grant of summary judgment, reveals the following facts and procedural history. On April 3, 1996, the plaintiff went to Kotsoris, a board certified internist and neurologist, for evaluation of symptoms including fatigue, headache and tinnitus. Kotsoris tentatively diagnosed the plaintiff with Lyme disease, and sent her to the hospital for a magnetic resonance imaging (MRI) of her brain, which was performed on April 10, 1996. Subsequently, both Kotsoris and Zimmerman, a radiologist who is a partner in Associates, which functionally is the hospital’s radiology department, reviewed that MRI. Both physicians failed to detect the presence of an early brain tumor on that MRI, and Kotsoris continued to treat the plaintiff for Lyme disease, notwithstanding the fact that testing for that illness was negative or inconclusive. Zimmerman never had any contact with the plaintiff at that time, and never again reviewed a film in her case.

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The plaintiff’s symptoms did not abate, and Kotsoris referred her back to the hospital on December 10, 1999, for another MRI. William Harley, a neuroradiologist who also is a partner in Associates, read that MRI and reported to Kotsoris that it revealed the presence of a 2.2 centimeter mass in the fourth ventricle of the plaintiff’s brain. Harley also reviewed the 1996 MRI and determined that the tumor was visible on that film as well. Thereafter, the plaintiff underwent surgery and radiation treatment, both of which were rendered riskier and more invasive because of the delay in starting treatment.

The plaintiff brought this action on September 17, 2001, alleging that Kotsoris and Zimmerman negligently failed to detect the tumor on the 1996 MRI, and that Associates and the hospital were liable for Zimmerman’s negligence. Following discovery, Zimmerman, Associates and the hospital moved for summary judgment.[6] Zimmerman, Associates and the hospital also moved, pursuant to Practice Book § 13-14, to preclude the plaintiff from offering expert testimony at trial because she had failed to disclose an expert witness “within a reasonable time prior to trial.” The trial court, Tobin, J., granted that motion to preclude, except that it granted the plaintiff permission to depose Harley and possibly disclose him as an expert after that deposition.

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Thereafter, to afford the plaintiff a full opportunity to prove the existence of continuing treatment or continuing course of conduct, Judge Tobin continued the pending motions for summary judgment until completion of Harley’s deposition.

Subsequently, the trial court, Hiller, J., granted the defendants’ motions for summary judgment, concluding that there was no evidence that the defendants had engaged in a continuing course of conduct or treatment of the plaintiff that would toll the operation of the statute of limitations. Thereafter, Judge Tobin granted Kotsoris’ motion to preclude expert testimony for failure to disclose an expert in accordance with Practice Book § 13-14, and the plaintiff withdrew the action against her. See also footnote 2 of this opinion. The trial court rendered judgment accordingly, and this appeal followed.

On appeal, the plaintiff claims that the trial court improperly granted the defendants’ motions for summary judgment, Conceding that the statute of limitations has run with respect to her claims against Zimmerman, the plaintiff argues that there is a genuine issue of material fact precluding summary judgment in favor of the defendants because Harley’s evaluation of the plaintiff’s MRI in December, 1999, completed a continuing course of conduct by Associates and the hospital that, pursuant to this court’s decisions in Blanchette v Barrett, 229 Conn. 256, 640 A.2d 74 (1994), an Witt v. St. Vincent’s Medical Center, 252 Conn. 363, 746 A.2d 753 (2000), tolled the statute of limitations until that time.[7] In response, the defendants rely on the Appellate Court’s subsequent decision i Golden v. Johnson Memorial Hospital, Inc., 66 Conn. App. 518,

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785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990
(2001), and a variety of sister state cases, to demonstrate that Witt and Blanchette are distinguishable because, in this context of multiple consultations by members of the same radiology practice group, each of the two MRI readings in the present case constituted a separate and discrete act, and there was no ongoing provider-patient relationship to toll the statute of limitations under the continuous treatment doctrine. We agree with the defendants.[8]

“As a preliminary matter, we set forth the appropriate standard of review. In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents

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establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Martel
v. Metropolitan District Commission, 275 Conn. 38, 46-47, 881 A.2d 194 (2005).

We begin our analysis by narrowing the issues in the present case, a process that starts with the plaintiff’s concession that the statute of limitations has expired as to Zimmerman personally. Moreover, we assume that, for purposes of this appeal, Associates, which was Zimmerman’s employer, functioned as the hospital’s radiology department, and therefore, was its agent. We also assume, without deciding, that Associates and the hospital may be held vicariously liable for Zimmerman’s negligence, notwithstanding the fact that any claims against her personally are time barred.[9] We, therefore,

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turn to an examination of the continuous treatment doctrine and the continuing course of conduct doctrine, to determine whether the statute of limitations was tolled as to Associates and the hospital, by virtue of

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the plaintiff’s initial interaction with Zimmerman in 1996, and subsequent assessment by Harley in 1999.[10]

In the present case, § 52-584, which is the statute of limitations applicable to health care malpractice, requires actions to be brought “within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered,” and also sets a repose period under which “no such action may be brought more than three years from the date of the act or omission complained of,” which, in this case, was April 10, 1996. Under § 52-584, “the relevant date of the act or omission complained of . . . is the date when the negligent conduct of the defendant occurs and . . . not the date when the plaintiff first sustains damage. . . . In the medical malpractice context, we have specifically determined that a lawsuit commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations, § 52-584, regardless of whether the plaintiff had not or, in the exercise of care, could not reasonably have discovered the nature of the injuries within that time period. . . . We have also recognized, however, that the statute of limitations, in the proper circumstances, may be tolled under the continuous treatment or the continuing course of conduct doctrine, thereby allowing a plaintiff to commence

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his or her lawsuit at a later date.”[11] (Citations omitted; internal quotation marks omitted.) Blanchette
v. Barrett, supra, 229 Conn. 265.

Under the “modern formulation” of the continuing course of conduct doctrine, “[t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. . . . Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.” (Internal quotation marks omitted.) Id., 275; see also Witt v. St. Vincent’s Medical Center, supra, 252 Conn. 370 (continuing course of conduct doctrine requires plaintiff to prove that “defendant: [1] committed an initial wrong upon the plaintiff; [2] owed a continuing duty to the plaintiff that was related to the alleged original wrong; and [3] continually breached that duty”).

Similarly, under the continuous treatment doctrine, “[t]he term malpractice itself may be applied to a single

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act of a physician or surgeon or, again, to a course of treatment. The [s]tatute of [l]imitations begins to run when the breach of duty occurs. When the injury is complete at the time of the act, the statutory period commences to run at that time. When, however, the injurious consequences arise from a course of treatment, the statute does not begin to run until the treatment is terminated.”[12] (Internal quotation marks omitted.)Blanchette v. Barrett, supra, 229 Conn. 274.

In Blanchette, we concluded that there was sufficient evidence to toll the statute of limitations under either the continuing course of conduct doctrine or the continuous treatment doctrine, because the defendant, who had been the plaintiff’s family physician from 1973 through 1985, first noticed an abnormal condition in the plaintiff’s left breast in 1979, diagnosed it as fibrocystic disease, and never mentioned that diagnosis to her. Id., 266-67. The defendant continued to monitor that particular breast through 1983 and 1985, felt a lump in that area, and “conscious[ly]” did not advise the plaintiff to get a mammogram in 1983. Id., 267. In January, 1985, after the defendant sent the plaintiff for a mammogram that came back negative, the defendant did not do anything with respect to further monitoring of the condition or repeating the mammogram, and did not tell the plaintiff how to do breast self-examinations. Id., 267-68.

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This court concluded that the jury properly relied on expert testimony at trial that the defendant should have engaged in extensive follow-up monitoring once he had diagnosed her with fibrocystic disease. Id., 270-71. We concluded that this evidence was “sufficient for the jury to find not only the existence of continuous treatment and a continuing duty on the part of the defendant with regard to the patient’s breast condition, but also continuing negligence on the part of the defendant based upon a breach of his professional duty of care to the plaintiff.” Id., 279. We noted expert testimony that, “the defendant had been negligent, not only by failing to perform or refer the plaintiff for immediate further diagnostic procedures after having received the negative results of the mammogram, but also by failing to pursue follow-up contacts with the plaintiff regarding her breast condition. According to [the expert witness], even if the defendant’s original diagnosis of fibrocystic disease was not negligent, the absence of further monitoring of this breast condition was actionable since this later wrongful conduct continued until the plaintiff discovered her injury. It is this continuous failure to monitor . . . that requires the application of the continuous treatment doctrine and the continuing course of conduct doctrine, thereby tolling the running of the statute of limitations.”[13]
(Citation omitted.) Id., 279-80; see also Sherwood v Banbury Hospital, 252 Conn. 193, 207-208, 746 A.2d 730
(2000) (genuine issue of fact existed precluding summary judgment as to continuous course of conduct doctrine when operative facts at time court considered statute of limitations issue indicated that other hospital blood banks had practice of informing all transfusion recipients that they had

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received blood untested for human immunodeficiency virus antibodies).

Subsequently, in Witt v. St. Vincent’s Medical Center, supra, 252 Conn. 366, this court considered the applicability of the continuing course of conduct doctrine in the context of a physician employed by a hospital’s pathology lab. In Witt, the defendant pathologist had reviewed tissue slides following a biopsy of the plaintiffs enlarged cervical lymph nodes in 1983. Id., 365. The defendant concluded that the slides were negative for cancer. Id. The plaintiff was diagnosed with non Hodgkin’s lymphoma eleven years later, and, at that time, his treating oncologist requested the original 1983 slides from the defendant. Id. The defendant sent the slides and report to the oncologist, and included a note that said, “`I’d be interested in a follow up on this patient!!I think at the time we were concerned that [the plaintiff] might be evolving a small lymphocytic lymphoma/CCL.'” (Emphasis added.) Id.

This court concluded that there was a genuine issue of material fact precluding summary judgment because of the applicability of the continuing course of conduct doctrine, and rejected the defendant’s argument that the three year statute of repose began to run in 1983. Id., 367. The court relied on the defendant’s note to the oncologist as indicating a concern about cancer in 1983, which could have given “rise to the defendant’s continuing duty to warn, which in turn triggered the continuing course of conduct doctrine.” Id., 372. The court concluded that a jury reasonably could find a continuing breach of that duty, which was the defendant’s “alleged continuing failure to indicate his concern for cancer throughout the period of time following the initial findings.” Id., 373. The court further rejected the defendant’s reliance o Blanchette v. Barrett, supra, 229 Conn. 284, for its determination that “a physician who has performed a misdiagnosis has [no] continuing duty to correct

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that diagnosis in the absence of proof that he subsequently learned that his diagnosis [had been] incorrect,” and held that, “[t]he duty to correct a diagnosis that a physician subsequently learns was incorrect, as alleged i Blanchette, and the duty to correct a diagnosis that he had reason to question in the first instance . . . both implicate the continuing course of conduct doctrine.”Witt v. St. Vincent’s Medical Center, supra, 252 Conn. 375.

Finally, we find particularly instructive the Appellate Court’s treatment of Blanchette and Witt i Golden v. Johnson Memorial Hospital, Inc., supra, 66 Conn. App. 518. In that case, the plaintiff was hospitalized in March, 1986, for general malaise symptoms, at which time a lump was removed from his neck and tested by a pathologist. Id., 520. The pathologist was employed by a separate practice group that was affiliated with and provided all pathology services to the hospital. Id., 520 n. 4. The pathologist reported that the lump was bacterial in origin, and the surgeon told the plaintiff that he was cured. Id., 520-21. Eleven years later, the plaintiff returned to the same hospital and underwent a battery of tests occasioned by a football injury, which ultimately revealed that he was suffering from Hodgkin’s disease. Id., 521. At that time, the plaintiff told his oncologist about the lump that had been removed from his neck in 1986, and another pathologist employed by the hospital reviewed the 1986 tissue slides again. Id. Thereafter, that pathologist corrected the 1986 initial diagnosis to reflect cancer. Id.

The Appellate Court concluded that the plaintiff’s action, filed six months after the issuance of the corrected report, was untimely because there was no continuing course of conduct to toll the operation of § 52-584. Id., 529-30. The Appellate Court stated that the “gravamen of the continuing course of conduct doctrine is that a duty continues after the original wrong is committed.

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Here, to prevail, the plaintiff had to show that [the pathology practice group] remained under a duty to him after the original misdiagnosis in 1986.” Id., 525-26. The court rejected the plaintiff’s claims that “the defendants owed a continuing duty to him from the time of the original misdiagnosis in 1986 until the issuance of the corrected report in 1998,” and that “the pathologist’s duty to the patient arises out of his examination of the patient’s tissue, his analysis of that tissue, and his diagnosis resulting from that examination and analysis. The plaintiff further argue[d] that his reliance on [the pathologist’s] diagnosis in the 1986 report and the fact that he did not consult with another physician because he was not provided follow-up treatment or given instructions on follow-up care shows that [the pathology group] had a continuing physician-patient relationship with him.” Id., 526.

The Appellate Court distinguished our decisions i Blanchette and Witt, noting that, i Witt, the duty arose because of the defendant’s initial, but unmentioned, concern about cancer, and i Blanchette, because of the defendant’s continuing relationship with the plaintiff by virtue of his status as her family physician. Id., 528-29. The Appellate Court then concluded: “[A]s a matter of law, to expect a pathology group to provide follow-up treatment or to instruct a patient on follow-up care after a negative diagnosis when there is no awareness that the diagnosis is wrong and there is no ongoing relationship is beyond the expectation of public policy.” Id., 529. The court stated that, “[t]o extend an initial duty to a pathologist to provide follow-up treatment or to instruct a patient on follow-up care when there is a negative diagnosis and no ongoing relationship would basically render the statute of limitations a nullity. That result would be against the policy of limiting the liability of defendants to claims brought within a reasonable time.” Id., 530; see als Hernandez v. Cirmo,

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67 Conn. App. 565, 571-72, 787 A.2d 657 (no continuing duty or course of conduct when defendant surgeon was aware of scar tissue on plaintiff’s fallopian tubes at time of surgery, but was not concerned at that time that condition would cause sterilization procedure to fail, “even if the plaintiff could have shown that such scarring should have caused such concern”), cert. denied, 259 Conn. 931, 793 A.2d 1084 (2002).

Cases cited by the defendants and located by our independent research indicate that the general rule, consistent with the Appellate Court’s approach in Golden v. Johnson Memorial Hospital, Inc., supra, 66 Conn. App. 518, is that separate and isolated contacts with different physicians who have the same employer, especially in the context of consultative practices such as radiology, will not, without more, give rise to a continuing course of conduct or treatment relationship for purposes of tolling the statute of limitations. We find several decisions of the New York Appellate Division particularly illustrative. In Noack
v. Symenow, 132 App. Div. 2d 965, 966, 518 N.Y.S.2d 495 (1987), the court concluded that, “[t]he mere fact that on successive occasions [members of the defendant radiology group] compared prior bone scans with the current scan does not render treatment continuous. A determination as to whether there is continuous treatment should be based upon whether there exists a relationship of continuing trust and confidence between the patient and the physician . . . . A comparison of test results suggests adherence to appropriate diagnostic procedure, not a change in the level or nature of trust and confidence between patient and radiologist.” (Citations omitted; emphasis added; internal quotation marks omitted.) The court further concluded that claims against a radiology group that was affiliated with a hospital were time barred when the group “maintains no contact with the patient aside from performance of the procedure and

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taking a brief history from the patient. Records of its procedures are maintained by the hospital, and any diagnosis is imparted directly to a physician, not to the patient. Under these circumstances, the performance of each bone scan was complete and discrete and did not constitute continuing treatment . . . .” (Citations omitted.) Id. Similarly, i Sweet v. Austin, 226 App. Div. 2d 942, 943, 641 N.Y.S.2d 165, appeal denied, 88 N.Y.2d 811, 672 N.E.2d 604, 649 N.Y.S.2d 378 (1996), the court concluded that no continuing relationship existed when the defendant radiologist ruled out the presence of a brain tumor in 1987, and then diagnosed the plaintiff with a brain tumor after a 1991 computed tomography (CT) scan because that radiologist “and [the] plaintiff had no communication or contact beyond the interpretation of her 1987 and 1991 CT scans and had no contact during the time interval between the two CT scans.” The court further noted that, “[t]he fact that the condition allegedly overlooked in the first CT scan was the condition ultimately diagnosed in the later CT scan does not bring the case within the continuing treatment doctrine `even if a correct diagnosis would have led to an ongoing course of treatment.'” Id., 944; see als Elkin v. Goodman, 24 App. Div. 3d 717, 719, 808 N.Y.S.2d 405 (2005) (“although at least one radiologist at [practice group] reviewed prior MRIs when generating his MRI report, such conduct, standing alone, does not alter the fact that each MRI scan and [radiology] report was a complete and discrete service”).[14]

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Viewed in light of these authorities, we conclude that the trial court properly determined that there is no genuine issue of material fact in the present case as to whether the statute of limitations was tolled by the continuing course of conduct doctrine or the continuous treatment doctrine. Even if we were to assume that an initial wrong occurred, or specifically, that Zimmerman was negligent in April, 1996, when she failed to diagnose the plaintiff’s tumor and failed to consult with a neuroradiologist or other specialist more experienced in reading such MRIs, the plaintiff failed to “present evidence that demonstrates the existence of some disputed factual issue” in response to the defendants’ motion. (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, supra, 275 Conn. 46-47. On the record before us, this case is distinguishable from our decision i Witt v. St. Vincent’s Medical Center, supra, 252 Conn. 363, because the plaintiff has not demonstrated that Zimmerman or anyone else affiliated with Associates or the hospital had any concern in 1996 that the MRI generated and read at that time indicated the presence of a tumor. This case also is distinguishable from Blanchette v Barrett, supra, 229 Conn. 256, because, as was discussed previously, the plaintiff’s two isolated contacts with Associates physicians over the course of three years constituted separate and discrete acts, unlike the close, long-term family physician relationship at issue in that case. Thus, the isolated nature of Associates’ contacts with the plaintiff through Zimmerman and Harley bring this case within

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the ambit of Golden v. Johnson Memorial Hospital, Inc., supra, 66 Conn. App. 518, and those sister state cases finding no continuous treatment relationship or continuing duty of care. Accordingly, the plaintiff’s claims, brought in September, 2001, are time barred, and the trial court properly granted the defendants’ motion for summary judgment.

The judgment is affirmed.

In this opinion the other justices concurred.