PAOLA MARTINELLI v. STEFANO FUSI et al., SC 17988

Judicial District of Waterbury

 

Dental Malpractice; Statute of Repose; Whether Statute of Repose was Tolled by the Continuous Treatment Doctrine or the Continuing Course of Conduct Doctrine. The plaintiff commenced this dental malpractice action in March of 2004, claiming, among other things, that the defendants, Ronald H. Delfini, D.D.S., and his professional corporation, negligently performed certain oral surgeries and related treatment. The defendants filed a motion for summary judgment, arguing that the three year statute of repose contained in General Statutes 52-584 expired prior to the institution of the plaintiff's action. The trial court agreed and granted the motion. In doing so, it stated that the disposition of the motion depended upon whether the statute of repose was tolled by the continuous treatment doctrine or the continuing course of conduct doctrine. It noted that under the continuous treatment doctrine, the statute does not begin to run until the course of treatment giving rise to the injuries is terminated. It then determined that because the plaintiff did not receive any treatment from Delfini after her final consultation with him in February of 2000, the continuous treatment doctrine did not toll the statute of repose beyond that date, and, consequently, the doctrine did not save the plaintiff's action, which was filed more than four years after the final consultation. With regard to the continuing course of conduct doctrine, the court noted that it was required to determine, among other things, whether the defendants owed a continuing duty to the plaintiff that was related to the alleged wrongdoing. Such a duty would be established, the court stated, if the defendants had committed some affirmative acts of misconduct or acts of omission that related to the alleged initial negligent act. The court went on to reject the plaintiff's claim that the defendants' failure to inform her of certain surgical complications that were revealed by a computerized tomography (CT) scan constituted an omission related to the alleged initial negligent act. It reasoned that there was no evidence indicating that Delfini was aware of, or concerned by, the possibility that the plaintiff was susceptible to certain increased medical risks as demonstrated by the CT scan results. Accordingly, it held that the continuing course of conduct doctrine did not serve to toll the statute of repose and that the statute therefore barred the present action. After permitting reargument, the court reaffirmed its original decision, citing to the recently released case of Grey v. Stamford Health System, Inc., 282 Conn. 745 (2007), in which the Supreme Court articulated a new test regarding the continuous treatment doctrine, namely, that the doctrine is applicable where the plaintiff proves, among other things, that the defendant provided ongoing treatment or monitoring of the plaintiff's medical condition after the allegedly negligent conduct, or the plaintiff reasonably could have anticipated that the defendant would do so. In this appeal, the Supreme Court will determine whether the trial court's decisions were correct.