Medical Malpractice and the “Continuous Act” Exceptions to the Statute of Repose

By Alex Stein

Cefaratti v. Aranow, — A.3d —- (Conn.App. 2014) is a textbook decision on the “continuous act” exceptions to the statute of repose. This decision of the Connecticut Appeals Court draws an important – but oft-missed – distinction between “continuous wrong” and “continuous treatment.”

Back in 2003, the plaintiff underwent open gastric bypass surgery in an attempt to cure her morbid obesity. Her follow-up treatment and monitoring took place between 2004 and the summer of 2009. All these procedures have been carried out by the same surgeon, the defendant, at a hospital in which he had attending privileges as an independent contractor.

The plaintiff testified at her deposition that on each of her post-operative visits, she told the defendant that she was experiencing abdominal pain. In August 2009, after being diagnosed with breast cancer by another physician, the plaintiff had a CT scan of her chest, abdomen, and pelvis, which revealed the presence of a foreign object in her abdominal cavity. This object was a surgical sponge that the defendant negligently left when he operated the plaintiff in 2003. Following that discovery, the plaintiff filed a malpractice suit against the defendant.

Connecticut has a fairly standard statute of repose, Gen. Stat. Ann. § 52–584, which provides that “No action to recover damages for injury to the person … by malpractice of a physician … may be brought more than three years from the date of the act or omission complained of.” Based on that statute, the defendant claimed that his negligence ceased being actionable in 2006 and moved to dismiss the suit. The court granted this motion and the plaintiff appealed.

This appeal was successful. Luckily to the plaintiff, Connecticut law recognizes two exceptions to the statute of repose (in addition to the “fraudulent concealment” exception that wasn’t applicable). One of those exceptions is known as “continuous wrong” and another as “continuous treatment.” The “continuous wrong” exception tolls the statute of repose when the plaintiff proves that the defendant physician: “(1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the original wrong; and (3) continually breached that duty.” Witt v. St. Vincent’s Medical Center, 746 A.2d 753 (Conn. 2000). The “continuous treatment” exception tolls the statute of repose when the plaintiff proves “(1) that [she] had an identifiable medical condition that required ongoing treatment or monitoring; (2) that the defendant provided treatment or monitoring of that condition after the allegedly negligent conduct, or that the plaintiff reasonably could have anticipated that the defendant would do so; and (3) that the plaintiff brought the action within the appropriate statutory period after the date that treatment terminated.” Grey v. Stamford Health Systems, 924 A.2d 831 (Conn. 2007).

Most states only recognize the “continuous wrong” exception to the repose statute, while refusing to recognize the “continuous treatment” exception: see, e.g., Rudenauer v. Zafiropoulos, 837 N.E.2d 278 (Mass. 2005); Schramm v. Lyon, 673 S.E.2d 241 (Ga. 2009). The “continuous wrong” exception that those states recognize is also very narrow. All it does is allow the plaintiff to base her suit on a non-dated and, consequently, unpardoned act of negligence. Because the statute of repose does not pardon such acts, the plaintiff can use any of them to establish the defendant’s liability. To that end, the plaintiff must prove that the unpardoned act of negligence substantially contributed to her injury.

Connecticut’s version of the “continuous wrong” exception is formulated differently to achieve the same result. This exception only applies when the defendant’s initial wrong – pardoned by the statute of repose as a discrete instance of negligence – creates an ongoing duty to fix or ameliorate the plaintiff’s resulting injury, which the defendant continually breaches. Under such circumstances, the defendant’s continual wrong aggravates or fails to cure the plaintiff’s injury; and because this wrong is not dated and consequently not pardoned, the plaintiff should be able to sue the defendant.

In the case at bar, the Appellate Court decided that the plaintiff failed to establish the requisite continual duty. Such a duty, the Court held, could only be established by expert testimony. The plaintiff should have called a medical expert to confirm her allegation that the defendant ought to have ordered exploratory tests in response to her complaints about abdominal pain. The plaintiff’s expert provided no such confirmation. He only testified that the defendant was obviously negligent in leaving the sponge in the plaintiff’s abdominal cavity.

This decision is open to criticism. The defendant’s negligence exposed the plaintiff to the risk of developing serious medical complications. This exposure created a duty for the defendant to eliminate the risk. This duty was well supported by a landmark medical malpractice case, Tresemer v. Barke, 86 Cal. App. 3d 656 (1978), featuring a gynecologist who installed an IUD in the patient’s body. At the time of that procedure, the IUD was considered safe, but was subsequently identified as damaging to the patient. From that point on, the court held, the defendant had a duty to advise the patient that the IUD must be removed from her body. This reasoning definitely applied to the case at bar.

The “continuous treatment” exception, however, did work to the plaintiff’s benefit. The Court ruled that the defendant’s duty to retrieve the sponge from her abdomen was part of the continual treatment that she received for her abdominal problems. The Court explained that these problems (morbid obesity and abdominal pain) constituted an “identifiable medical condition that required ongoing treatment or monitoring.” Based on that determination, the Court decided that the statute of repose did not extinguish the plaintiff’s action and remanded the case for further proceedings.

The Court’s decision to grant the plaintiff the “continuous treatment” exception also alleviated her burden of proving causation at the subsequent trial. The rationale underlying the “continuous treatment” exception holds that a patient cannot reasonably be expected to sue her physician for a treatment that the physician still delivers. An aggrieved patient consequently can postpone her suit till the end of the treatment and then sue the physician for the entire negligent treatment. The “continuous wrong” exception gives plaintiffs no such option.

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