Statute of limitations at center of lawsuit against hospital
by Thomas B. Scheffey
Connecticut Law Tribune
November 24, 2008
Bridgeport attorney Carey B. Reilly claims that a Danbury Hospital pathologist never fully examined tissue samples from Dr. Stanley Saperstein’s esophagus in 1999. That means, she said, the clock didn’t begin ticking on the five-year statute of repose for a wrongful death lawsuit.
As an accomplished physician, Stanley Saperstein was acutely aware of the importance of getting an early diagnosis. The lack of one in 1999 sent him to an early grave in 2007. This year, his estate filed a wrongful death suit against Danbury Hospital, where Saperstein worked and where he received an incorrect diagnosis nearly a decade ago. The hospital has responded that the time has passed for filing such a claim.
And so the attorneys for Saperstein’s estate have decided upon an innovative legal strategy. They are claiming that the review of a biopsy performed in 1999 remains an uncompleted task to this day, and thus the statute of limitations has not expired.
Saperstein’s estate is represented by Carey B. Reilly, a partner at Koskoff, Koskoff & Bieder in Bridgeport. Danbury Hospital is represented by R. Cornelius Danaher, of Danaher, Lagnese & Sacco in Hartford.
A decade ago, Saperstein was concerned about recurring heartburn. He feared it might develop into a more serious condition. On Aug. 16, 1999, his gastroenterologist took a tissue sample – or biopsy – from Saperstein’s esophagus. The samples were sent to the pathology department at Danbury Hospital, where Saperstein had worked for 35 years.
Three days later, when the three biopsy slides were ready to inspect, board certified pathologist Beatrice Cuello was in charge of diagnostics. Her typical daily workload was 60 to 80 cases. Danbury is a teaching hospital, and the resident assigned to work with Cuello that day was Hossein A. Alavi.
There’s a dispute as to who read the slides. Cuello testified that she read all three under a microscope. The diagnosis written down for Saperstein was “reflux esophagitis,” a condition that is neither pre-cancerous nor malignant.
Delighted and greatly relieved, Saperstein continued working for six more years, until he developed difficulty swallowing.
Cohen took a second biopsy in 2005, and sent it to a lab in Texas. Very grim news came back. Saperstein had cancer of the esophagus. Colleagues advised him to get a second opinion at the world-renowned cancer center, Memorial Sloan-Kettering Hospital in New York. In 2005, when Saperstein went to Danbury Hospital to get the 1999 slides to take to Sloan-Kettering, Danbury Hospital pathologist Frank Braza had more extraordinarily painful news to convey to his longtime friend.
Saperstein was recorded on videotape, a week and a half before his death, recalling what Braza said that day: “Shep, we blew it. I’ve got to tell you there was cancer in, in 1999. We missed the diagnosis. I’m sorry. I’m terribly sorry.”
Saperstein recounted his and his wife’s reaction: “Eleanor and I were shocked. I mean shocked out of our minds. Not only do we have cancer but the cancer was there in 1999. The potential for cure was there in 1999. I could have been operated on and…been cured of this particular problem.”
Statute Of Repose
Five months before his death, in March 2006, Saperstein sued his hospital for malpractice, and in June of this year, his estate sued for his loss of life.
The hospital’s defense is that the claims are barred by Connecticut’s three-year statute of repose for malpractice and its five-year statute of repose for wrongful death. Under Connecticut law, the clock starts ticking on a wrongful death claim not at the moment someone dies, but on “the date of the action or omission complained of.”
Those statutes bar legal claims even if the plaintiff did not or could not discover the nature of the injury in time to sue. In the hospital’s motion for summary judgment on Aug. 29, it made little effort to deny malpractice, relying entirely on the power of the statute of repose, which is designed to permanently close the book on potential lawsuits not brought within the stated time period.
In her Nov. 5 motion in opposition to summary judgment, Reilly noted that pathologist Cuello testified in depositions that she had reviewed three biopsy slides in 1999 when making her initial diagnosis of no pre-cancerous condition. Cuello also testified that she re-examined the same three slides in 2006 when revising her initial diagnosis.
But Reilly is casting doubt that Cuello’s original review was ever complete. Her argument is supported by an affidavit from veteran Sloan-Kettering physician Steven Hajdu, who is also a professor at Cornell University and New York University medical schools.
Hajdu said he considers Cuello a “highly qualified pathologist,” but that the slides showed “clearly evident” pre-cancerous cells. On that basis, he concludes “with a high degree of medical certainty” that Cuello did not review any of Saperstein’s pathology slides in 1999, the motion states.
What the actual facts are, and who’s telling the truth, are fact questions for a jury, Reilly maintains. “Hajdu opines it was the resident Alavi who reviewed” the slides in 1999, because a highly qualified pathologist like Cuello “would not have missed the high grade dysplasia that was `clearly evident’ on the slides,” Reilly’s motion stated.
As for the Cuello’s assertion that she examined the same three slides in 2006, the plaintiffs say that’s impossible. They state that Saperstein took two of the slides to Sloan-Kettering in 2005.
The standard of care, says Reilly, required Cuello herself to carefully inspect all three slides under a microscope. If she did not, Reilly says, the review was never finished. And thus, the attorney argues, the repose period hasn’t even started, much less run out.
Never Any Doubts
Danaher, in his motion for summary judgment, notes that case law allows plaintiffs to pause or “toll” the running of the statute of limitations in cases where a diagnostician expresses doubts or second thoughts, or leaves information out of the diagnostic file. In this case, Danaher notes, Cuello had never expressed any doubts.
Thus, because she had no contact with Saperstein, no further dealings and no open questions, it’s impossible to claim Cuello had a continuing obligation or relationship with Saperstein that would halt or reset the running of the period of limitations, Danaher said in his motion. He did not respond to a request for comment.
The Saperstein estate also raises a number of alternative arguments that could bypass the statutory limitations issues. Undeveloped case law says a “special relationship” between the plaintiff and defendant could stop the clock in some cases. In her brief, Reilly notes that Saperstein and his wife established an educational endowment for the hospital for diabetes complications, and that he was the chief of the hospital’s Chronic Dialysis Unit.
Opposing that argument, Danaher made the high-minded argument that doctors and hospitals have to do the best they can for all patients – not just insiders and rich donors.
Reilly’s final argument is a state and federal constitutional equal protection claim. It challenges the apparent unfairness of the limitations period being paused in cases of fraud, but not in cases where discovery of the harm was delayed for other reasons.
The parties are set for oral arguments on the summary judgment issue in two weeks. Waterbury Superior Court Judge Barry Stevens is handling the case.