John F. Costa Obtains Dismissal for Hospital on Statute of Limitations Grounds

RRD Partner John F. Costa and Associate Nicole D. Wright, on behalf of a Connecticut hospital, recently obtained dismissal of a medical malpractice lawsuit arising out of the alleged failure to timely diagnose lung cancer following the chest x-ray of a patient in November 2007.  The hospital was sued along with a radiologist and his group, and a physicians’ assistant and her group.  During the decedent’s admission to the hospital, she underwent a chest x-ray ordered by the physicians’ assistant.  The chest x-ray was interpreted by the radiologist and the results were later communicated to one of the hospital’s nurses.  It is claimed that the presence of a spiculated mass in the decedent’s lung was not appropriately communicated by the health care providers, including the hospital’s nurse, and that sufficient follow-up was not undertaken, resulting in the progression of the decedent’s lung cancer to the point that it became incurable once detected.  The hospital was sued for medical negligence as it pertains to the reporting and transmission of the chest x-ray results, and it was also sued on a theory of vicarious liability for the actions of the radiologist and the physicians’ assistant. 

The Honorable Julia L. Aurigemma dismissed the plaintiffs’ complaint in its entirety, as to all defendants, for lack of subject matter jurisdiction.  In their motion to dismiss, Attorneys Costa and Wright argued that the plaintiffs had failed to file their action with the statutorily prescribed limitations period, and accordingly, the court lacked subject matter jurisdiction to hear the case.  In objecting to the motion to dismiss, the plaintiffs argued that various tolling doctrines, including the doctrine of continuing course of conduct, applied, and thus, the action had been timely filed.  Judge Aurigemma found the burden rested upon the plaintiffs to establish subject matter jurisdiction and that the time limitation in the statute of limitations implicates subject matter jurisdiction.  Judge Auriemma further found that the action was not timely filed and that no tolling doctrines were applicable in this instance.  Specifically, Judge Aurigemma found that the continuing course of conduct doctrine did not apply as to the claims against the hospital because the hospital owed no duty to the decedent under this set of facts.  The existence of a duty is essential in the application of the continuing course of conduct doctrine: a plaintiff must establish, inter alia, that a defendant owed a continuing duty to a plaintiff that was related to the alleged initial wrong.  Judge Aurigemma held that to impose such a duty on the hospital in the context of following up on abnormal patient x-rays would eviscerate the function of the statute of limitations established by the legislature, and that this would remove the shelter from liability that the statute of limitations and repose seek to create, making it virtually impossible for any hospital to be free from protracted and unknown liability, if any former patient with whom the hospital has no ongoing relationship could extend the statutory period in which to bring an action by claiming that the hospital failed to send a patient’s report to another physician.