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Appellate Court Notes: Week of December 1

Welcome to our Supreme and Appellate Court summaries webpage.  On this page, I provide abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants.  I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long.  It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements.  These summaries are limited to the civil litigation decisions based on my own particular field of practice, so you will not find distillations of the many criminal and matrimonial law decisions on this page.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my opinion . . . and when mistakes of trial counsel are highlighted because they triggered a particular outcome, I will try to be mindful of the adage . . . “There but for the grace of God . . ..”  I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted December 1, 2014

In this med mal case the Appellate Court held that leaving a sponge in the patient did not toll the SOL under the continuing course of conduct theory so as to avoid SJ in favor of the defendant doctor because the plaintiff failed to offer evidence that her complaints of post-operative abdominal pain, on and off for years, should have led the doctor to conclude a foreign object had been left behind.  But the same continuing post-operative treatment did qualify for the continuing treatment theory to create a question of fact whether the SOL should be deemed tolled and so SJ should not have been granted on that claim.   Once again as part of this decision the Court rejected the argument that SOLs violate constitutional rights. 

Turning to the hospital defendant, SJ was held to have been properly granted in favor of the hospital because an agency relation is not created just because the doctor had privileges at the hospital.  Likewise, the hospital defendant holing out the doctor as the founder and chief surgeon of its surgery unit on its web page did not establish an agency relationship without a showing that the hospital controlled the actions of the doctor.

Finally, the Court declined to find a new cause of action existed in CT by allowing a claim of apparent authority (of the hospital over the doctor) to be used in a tort setting as heretofore CT has only recognized that claim in contractual setting.

The Appellate Court declined to adopt the “federal prison mailbox rule” in upholding a judgment in favor of the City upon a claim of defamation by a federal prison inmate.  Thus process had to be served before the expiration of the CT 2-year SOL in accordance with the CT State rules of practice.  Secondly, the Court upheld the Trial Court’s conclusion that a General Release that contained the typical broad release language and ended with the phrase…..and in particular all claims arising out of a tax sale……was broad enough to encompass all claims that might exist by the plaintiff against the City.

When you are up against an SOL deadline, the statutes allow you to have a marshall serve the complaint after the SOL so long as you deliver it to them before the SOL expires and they in turn serve it within 30 days thereafter.   While the proper protocol to follow under CGS 52-593a when this happens is to have the marshall recite in the return of service both the date of receipt and the date of service and that it was within 30 days (and had that protocol been followed everyone would have saved a lot of time and $), here the Appellate Court held that the Trial Court should have taken into account the totality of the circumstances to find that the requirements of the statute had been met.   

First the attorney signed the complaint on the date indicated and represented to the Trial Court he delivered it to the marshall that day, which was before the SOL expired.  (The Court may rely upon a representation of counsel the decision held.) .  Next, the marshall’s return indicated service was made upon the 1st  defendant that same day thus establishing the marshall received the process before the SOL expired.  Then the return of service went on to state the 2nd  defendant (who was complaining the SOL had expired)  was served 10 days later………..which while being outside the SOL……was nonetheless  with 30 days of the marshall’s receipt of the paperwork.  So even though the return of service did not contain the magical language, the saving statute applied to avoid the SOL from running as to the 2nd defendant.

 

The facts and holdings of any case may be redacted, paraphrased or condensed for ease of reading.  No summary can be an exact rendering of any decision, however, so interested readers are referred to the full decisions.  The docket number of each case is a hyperlink to the Connecticut Judicial Department online slip opinion.  Copyright 2014 Pullman & Comley, LLC. All Rights Reserved.

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