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

193 A.3d 520, 330 Conn. 251
CourtSupreme Court of Connecticut
DecidedSeptember 25, 2018
DocketSC 19619, (SC 19749)
StatusPublished
Cited by18 cases

This text of 193 A.3d 520 (Angersola v. Radiologic Assocs. of Middletown, P.C.) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Angersola v. Radiologic Assocs. of Middletown, P.C., 193 A.3d 520, 330 Conn. 251 (Colo. 2018).

Opinion

PALMER, J.

**254The 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, **255Shoreline 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 *525**256we 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 **257report 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 *526created 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 **258also 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., at 652, 974 A.2d 669 ; 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.

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Bluebook (online)
193 A.3d 520, 330 Conn. 251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/angersola-v-radiologic-assocs-of-middletown-pc-conn-2018.