ALANDER, JUDGE.
The defendants, Leonard Lippman, M.D., S.H.E. Medical Associates, P.C., and Saint Francis Hospital and Medical Center, have filed motions for summary judgment asserting that this medical malpractice action is barred by the two-year statute of limitations contained in General Statutes § 52-584. After reviewing the documents submitted in support of and in opposition to the motions for summary judgment, I conclude that the defendants have not met their burden of demonstrating that there is no genuine issue of material fact as to the time when the plaintiffs discovered or in the exercise of reasonable care should have discovered the injury at issue in this case.
This medical malpractice action has been brought by Sydney Elizabeth Reich and her parents, Laurie and Brian Reich, for injuries allegedly caused by the negligence of the defendant medical providers during Sydney's birth. Sydney was born on February 4, 1998 at Saint Francis Hospital. Dr. Leonard Lippman provided care to Laurie Reich during her labor and delivery. Upon delivery, Sydney required emergent resuscitative care, including C.P.R. Sydney was subsequently transferred to the neonatal intensive care unit, where she was treated for respiratory distress. On February 5, 1998, Sydney was transferred to Yale-New Haven Hospital for treatment of persistent pulmonary hypertension and she remained there until February 9, 1998, when she was transferred back to St. Francis Hospital.
Sydney was discharged from Saint Francis Hospital on February 18, 1998. Prior to Sydney's discharge, Laurie and Brian Reich were told by Dr. Francis DiMario, a pediatric neurologist, that Sydney had a 70% chance of developing normally and a 30% chance of developing neurological sequelae, including cerebral palsy, visual impairment, learning disability and mental retardation.
After her discharge from the hospital, Sydney was enrolled in the Birth CT Page 10971 to Three Program and continued to be seen by a pediatric neurologist. When Sydney was six to seven months old, Laurie Reich had concerns that Sydney was exhibiting delays in her development. Dr. Laura Ment, Sydney's pediatric neurologist, told Laura Reich that children develop at different rates and that Sydney would likely catch up in her development.
In February 1999, Laurie Reich was told by a physical therapist that Sydney had some of the same features that the therapist had observed in children with cerebral palsy. However, that same day, Laurie Reich had been assured by Dr. Ment that Sydney did not have cerebral palsy.
On April 20, 1999, an MRI scan of Sydney's brain was performed. While the MRI showed evidence of abnormality, the diagnosis was inconclusive and Sydney underwent a number of subsequent tests to investigate the possibility of a mitochondrial disorder. Sydney's parents sought an additional opinion from Dr. Andre Duplessis, a pediatric neurologist at Children's Hospital in Boston, who, on July 8, 1999, opined that it was likely that Sydney had cerebral palsy, rather than a mitochondrial disorder, and that her condition was likely due to a lack of oxygen at birth.
The defendants were served with this action on January 30, 2001. They contend that it is untimely because it was not brought within two years from the date Sydney's injuries were first discovered or should have been discovered as required by the statute of limitations for medical malpractice actions set forth in General Statutes § 52-584.
Summary judgment may be granted where the claim is barred by the statute of limitations. Doty v. Mucci, 238 Conn. 800, 806 (1996). "Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted.) Rivera v. Double A Transportation, Inc., 248 Conn. 21 (1999).
General Statutes 52-584 provides in pertinent part as follows: "No action to recover damages for injury to the person . . . caused by . . . CT Page 10972 malpractice of a physician . . . shall be brought but 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 . . ." Our Supreme Court has defined "injury" for the purposes of § 52-584 to be an event that occurs when the plaintiff suffers some form of "actionable harm." Catz v. Rubenstein, 201 Conn. 39, 43 (1986). The necessary ingredients for actionable harm in a negligence action are well-established and consist of the essential elements of a negligence cause of action: (1) a breach of duty by the defendant; (2) injury to the plaintiff; and (3) a causal connection between the defendant's breach of duty and the resulting ham to the plaintiff. Id., 44. In determining when a plaintiff has suffered actionable harm, a court must focus "on the plaintiff's knowledge of facts, rather than on discovery of applicable legal theories." (Internal quotation marks omitted.) Lambert v. Stovell, 205 Conn. 1, 6 (1987).
"As the preceding analysis reveals, a plaintiff's claim of medical malpractice will accrue once he or she discovers, or in the exercise of reasonable care should have discovered, that he or she suffered an actionable harm. The plain language of the statute does not, therefore, impose any specific affirmative duty on the plaintiff to investigate a potential claim of malpractice. Rather, the sole inquiry, in this context, is whether, in light of all relevant circumstances, the plaintiff exercised reasonable care in the discovery of his or her injury." Taylor v. Winsted Memorial Hospital, 262 Conn. 797, 805 (2003).
The defendants maintain that the plaintiffs should have discovered that Sydney suffered actionable harm prior to January 30, 1999. They point to her parent's knowledge of the need for resuscitation at delivery, Sydney's admission to the neonatal intensive care unit and her subsequent transfer to Yale-New Haven Hospital. The defendants also emphasize Laurie Reich's awareness that Sydney had a 30% chance of developing neurological sequelae, including cerebral palsy and her observations of developmental delays in Sydney within her first six to seven months of life.
The facts cited by the defendants do not establish that the plaintiffs should have discovered prior to January 30, 1999 that Sydney suffered actionable harm during her delivery on February 4, 1998. The fact that Sydney struggled with health problems, such as the need for resuscitation and transfer to the neonatal intensive care unit, during and immediately after delivery do not, in and of themselves, indicate that the attending physician or the hospital breached the standard of care. The defendants concede that the health difficulties Sydney experienced are consistent with a delivery free of negligence. Similarly, the existence of developmental delays and a 30% chance of neurological sequelae, including CT Page 10973 cerebral palsy, do not necessarily evidence inadequate care by the medical providers. This is especially so in this case where there remained uncertainty as to whether Sydney's condition was caused by a mitochondrial disorder.
Moreover, the facts marshaled by the defendants do not conclusively demonstrate that the plaintiffs should have discovered that Sydney suffered an injury or that any injury was caused by a breach of the standard of care. All of the harm suffered by Sydney: her need for resuscitation, her developmental delays, her chance for neurological sequelae, had innocent explanations unrelated to any negligence. It would be quite reasonable for the trier of fact to conclude that it was not until the plaintiffs received the opinion of Dr. Duplessis, in which he told them that it was likely that Sydney had cerebral palsy, rather than a mitochondrial disorder, and that her condition was likely due to a lack of oxygen at birth, that the plaintiffs could have reasonably been expected to discover that a breach of the standard of care by the defendants may have caused injury to Sydney.
In light of the above, the defendants have not proven that they are entitled to judgment as a matter of law and, accordingly, their motion for summary judgment is hereby denied.
BY THE COURT
Jon M. Alander Judge of the Superior Court
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