ROBERT J. KELLY v. STATE OF CONNECTICUT, UNIVERSITY OF CONNECTICUT HEALTH CENTER, SC 17884

Judicial District of Middlesex

 

      Claims Commission; Time Limitation on Claims Against State Pursuant to General Statutes § 4-148 (a); Whether Special Public Act that Granted Plaintiff Permission to File Untimely Claim Against State Constitutes an "Exclusive Public Emolument" in Violation of Article First, § 1 of the Connecticut Constitution. In 1995, the plaintiff underwent surgery to have a kidney stone surgically removed at the University of Connecticut Health Center.  Afterward, he continued to experience pain and bloody urine.  Although he met with the surgeon and other employees of the health center on several occasions over the next few years, he did not obtain a diagnosis until May, 2000, when he was informed that there was likely a "foreign body" in his left ureter.  In July, 2000, he underwent surgery to remove what were later identified as laser fibers.  In September, 2001, a medical expert opined that his injuries were due to the state's negligence.  In 2002, the plaintiff filed a notice of claim with the state claims commissioner, who denied the claim as untimely under General Statutes § 4-148 (a), which provides in part that a notice of claim must be presented within one year after "the damage or injury is sustained or discovered . . . provided no claim shall be presented more than three years from the date of the act or event complained of."  Thereafter, the legislature enacted Special Acts 2005, No. 05-4, § 1, in order to remedy the late notice of the plaintiff's claim.  After resubmitting his claim to the claims commissioner and receiving permission to sue the state, the plaintiff filed the instant action, alleging medical malpractice and lack of informed consent.  The state moved to dismiss the action, claiming that the court lacked subject matter jurisdiction because the special act was unconstitutional as an exclusive public emolument prohibited by article first, § 1, of the state constitution, since it was passed to remedy a late notice of claim that was untimely through no fault of the state and did not serve a legitimate public purpose.  The trial court dismissed the action.  Assuming without deciding that the continuing treatment or continuous course of conduct doctrine would apply to toll the three year repose portion of § 4-148 (a), it determined that the action was untimely as a matter of law because the plaintiff filed the notice of claim in 2002, more than one year after discovering the injury or actionable harm.  The court found that the plaintiff discovered the injury in 2000, when he learned that laser fibers were present in his ureter.  In addition, observing that the plaintiff had not claimed or presented evidence that a state actor had prevented him from bringing a timely action, the court determined that the special act was unconstitutional because it furthered no public purpose.  The plaintiff appeals, claiming that the court improperly found that the mere discovery of laser fibers constituted actionable harm.  He further argues that the special act serves a public purpose in that it affords him the same two year limitations period that he would have been entitled to if he had been injured by a private hospital.  Moreover, he asserts that the court improperly found that the special act was unconstitutional based on his failure to allege that the late filing of his claim was due to a procedural mistake of the state.