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DELORES PEEK v. MANCHESTER
MEMORIAL HOSPITAL ET AL.
(SC 20414)
Robinson, C. J., and McDonald, Mullins, Kahn and Ecker, Js.*
Syllabus
Pursuant to the statute ((Rev. to 2015) § 52-584) setting forth the limitation
period for actions brought against hospitals for negligence or medical
malpractice, among other actions, such actions may not 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 . . . .’’
The plaintiff sought to recover damages from the defendant hospital and
its holding company for negligence for injuries she sustained while
admitted to the hospital. On February 10, 2015, the plaintiff, while on
fall prevention protocol, fell while using the restroom and sustained
injuries to her shoulder and neck. She was discharged from the hospital
two days later. On April 6, 2015, while receiving follow-up care at her
physician’s office, a staff member in that office informed the plaintiff
that a nurse or nurse’s aide should have been responsible for her safety
while she was an inpatient at the hospital. On May 22, 2017, the plaintiff
delivered the present action to the state marshal for service of process.
Subsequently, the defendants filed a motion for summary judgment,
claiming that the plaintiff’s action was barred by the two year statute
of limitations set forth in § 52-584. The trial court granted the defendants’
motion, reasoning that the plaintiff suffered actionable harm from the
fall and injuries on February 10, 2015, and, having received a statutory
((Rev. to 2015) § 52-190a (b)) ninety day extension of the two year
limitation period set forth in § 52-584, should have commenced her
action on or before May 10, 2017. The trial court thus determined that
the plaintiff’s action was time barred insofar as she commenced her
action on May 22, 2017. The plaintiff appealed from the trial court’s
judgment in favor of the defendants, and the Appellate Court reversed
the trial court’s judgment. The Appellate Court, relying on this court’s
decision in Lagassey v. State (268 Conn. 723), construed the term
‘‘injury,’’ for purposes of § 52-584, as synonymous with ‘‘actionable
harm,’’ which occurs when the plaintiff discovers or should have discov-
ered that the harm complained of was caused by the negligence of the
defendant. The Appellate Court concluded that the trial court should
not have granted the defendants’ motion for summary judgment because
the evidence demonstrated a genuine issue of material fact as to when
the plaintiff discovered her injury as contemplated by § 52-584. On the
granting of certification, the defendants appealed to this court. Held
that the Appellate Court correctly concluded that, viewing the facts in
the light most favorable to the plaintiff, there was a genuine issue of
material fact regarding whether the plaintiff commenced her action
within two years from the date of her ‘‘injury,’’ as that term is understood
in the context of § 52-584, and, accordingly, the Appellate Court properly
reversed the trial court’s judgment: Connecticut case law was clear that
the term ‘‘injury,’’ as used in § 52-584, means ‘‘actionable harm,’’ which
occurs when the plaintiff discovers or should have discovered that the
harm complained of was caused by the negligence of the defendant,
and the fact that the plaintiff averred that she did not know the cause
of her fall or that the defendants were responsible for her safety while
she was an inpatient at the hospital until April 6, 2015, was sufficient
to create a genuine issue of material fact regarding when her actionable
harm occurred; moreover, there was no merit to the defendants’ claim
that, because the plaintiff’s physical injuries from her fall were obvious,
the Appellate Court improperly applied failure to diagnose or latent
injury cases to the facts of this case, as the definition of ‘‘actionable
harm’’ established in Lagassey and its progeny was applicable to all
actions subject to § 52-584, regardless of whether the physical harm
was obvious or latent; furthermore, the defendants could not prevail
on their claim that the Appellate Court should have relied on this court’s
decision in Burns v. Hartford Hospital (192 Conn. 451), in which the
plaintiff sustained obvious injuries, like the plaintiff in the present case,
and in which the court determined that the limitation period set forth
in § 52-584 began to run when the plaintiff sustained his injuries, as the
plaintiff in Burns, unlike the plaintiff in the present case, became aware
of the connection between his injuries and the defendants’ negligence
at the time that the injuries were sustained; in addition, contrary to the
defendants’ claim that, because Lagassey was decided after the statute
(§ 1-2z) embodying the plain meaning rule became effective, the court
in Lagassey improperly neglected to apply that rule and, pursuant to
that rule, should have interpreted the term ‘‘injury’’ in § 52-584 to mean
‘‘hurt, damage, or loss sustained,’’ the court in Lagassey simply restated
and followed this court’s long-standing interpretation of ‘‘injury’’ for
purposes of § 52-584 as actionable harm, this court saw no reason to
abandon that long-standing interpretation in the present case, as the
legislature, in enacting § 1-2z, did not intend for this court to overrule
its prior interpretations of statutory language in cases decided prior to
the enactment of § 1-2z, and the doctrine of stare decisis and the tenet
of statutory interpretation that cautions against overruling case law
involving this court’s construction of a statute, if the legislature reason-
ably may be deemed to have acquiesced in that construction, as in the
present case, counseled against accepting the defendants’ invitation to
revisit Lagassey’s interpretation of § 52-584.
Argued November 17, 2020—officially released February 2, 2022**
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged negligence, and for other relief, brought
to the Superior Court in the judicial district of Hartford,
where the court, Cobb, J., granted the defendants’ motion
for summary judgment and rendered judgment thereon,
from which the plaintiff appealed; thereafter, the Appel-
late Court, Alvord, Moll and Bear, Js., reversed the trial
court’s judgment and remanded the case for further
proceedings, and the defendants, on the granting of
certification, appealed to this court. Affirmed.
Sean R. Caruthers, with whom, on the brief, was
Michael D. Neubert, for the appellants (defendants).
Neil Johnson, for the appellee (plaintiff).
Opinion
MULLINS, J. The defendants, Manchester Memorial
Hospital and Prospect Medical Holdings, Inc., appeal
from the judgment of the Appellate Court, which
reversed the judgment of the trial court and concluded
that a genuine issue of material fact exists as to whether
the action of the plaintiff, Delores Peek, was barred by
the two year statute of limitations set forth in General
Statutes (Rev. to 2015) § 52-584.1 We conclude that a
genuine issue of material fact exists regarding whether
the plaintiff initiated her action within two years from
the date of her injury, as that term is understood in the
context of § 52-584. Therefore, we affirm the judgment
of the Appellate Court.
The Appellate Court opinion sets forth the following
relevant facts from the record, viewed in the light most
favorable to the plaintiff as the nonmoving party. ‘‘On
January 30, 2015, the plaintiff was admitted to Manches-
ter Memorial Hospital with a medical diagnosis of [C.
diff] diarrhea. On or about that date, she was assessed
at the hospital and found to be at risk for falling. She
was placed on ‘fall prevention protocol’ and required
assistance to leave her hospital bed. On February 10,
2015, the plaintiff fell while using the restroom and
sustained injuries to her shoulder and neck, for which
she received medication and treatment. She ‘was unaware,’
on the date of her fall, ‘what was the cause of [her]
fall.’ The plaintiff left the hospital on February 12, 2015,
and received follow-up care through December 10, 2015,
on which date she underwent neck surgery. On or about
April 6, 2015, staff at the office of the plaintiff’s doctor
informed the plaintiff that ‘a nurse or nurse’s aide
should have been responsible for [her] safety while
inpatient at [the hospital].’
‘‘On November 22, 2016, the plaintiff received an auto-
matic ninety day extension of the statute of limitations
pursuant to General Statutes [Rev. to 2015] § 52-190a
(b).2 The plaintiff delivered the action to the state mar-
shal for service of process on May 22, 2017. In her
one count complaint, the plaintiff alleges that her fall
resulted from the defendants’ negligence in ‘fail[ing] to
exercise the degree of care, skill, and diligence ordi-
narily exercised by hospitals engaged in the treat[ment]
of patients . . . on . . . fall prevention protocol
. . . .’ On July 26, 2017, the defendants filed an answer
and a special defense alleging that the plaintiff’s claim
was barred by the statute of limitations in § 52-584. On
July 31, 2017, the plaintiff filed her reply to the special
defense, stating therein: ‘The plaintiff . . . denies any
and all allegations of the defendants’ special defense
in its entirety . . . .’
‘‘On September 13, 2017, the defendants filed a
motion for summary judgment, maintaining that the
plaintiff’s action was barred by the statute of limitations
in § 52-584. The documents submitted with the defen-
dants’ motion and memorandum of law in support of
their motion were the plaintiff’s certificate of good faith
pursuant to § 52-190a and attached written opinion let-
ter, the plaintiff’s request for an extension of the statute
of limitations, the state marshal’s return of service, the
defendants’ answer and special defense, and the plain-
tiff’s reply thereto.
‘‘On December 29, 2017, the plaintiff objected to the
motion for summary judgment, arguing . . . [inter alia,
that] the statute of limitations did not begin [to run]
until April 6, 2015, on which date she claimed that she
‘learned that she was on fall risk protocol and that while
on fall risk protocol that the hospital was required to
provide her assistance whenever she left her bed.’ She
argued that she ‘was not aware that the defendants’
conduct or lack thereof was the cause of her injury
until she was informed by the defendant provider on
or about April 6, 2015.’ The plaintiff attached to her
opposition memorandum her affidavit averring that she
‘was unaware,’ on the date of her fall, ‘what was the
cause of [her] fall.’ She further averred that staff at her
doctor’s office informed her on April 6, 2015, that ‘a
nurse or nurse’s aide should have been responsible
for [her] safety while inpatient at [the hospital].’ The
defendants did not file a reply memorandum.
‘‘On January 2, 2018, the court granted the defendants’
motion for summary judgment [and rendered judgment
for the defendants], stating that ‘the plaintiff did not
place the action in the hands of the marshal until May
22, 2017. Because the plaintiff suffered actionable
harm—the fall and injuries—on February 10, 2015, she
should have brought the action on or before February
10, 2017. Having received a ninety day extension . . .
the suit should have been initiated on or before May
10, 2017. Having failed to initiate this action within
the applicable statute of limitations, the action is time
barred.’ ’’ (Footnote added; footnotes omitted.) Peek v.
Manchester Memorial Hospital, 193 Conn. App. 337,
339–41, 219 A.3d 421 (2019).
The plaintiff appealed from the judgment of the trial
court. On appeal to the Appellate Court, the plaintiff
asserted ‘‘that she submitted evidence in opposition
to the defendants’ motion for summary judgment that
show[ed] that she did not discover her ‘injury’ for pur-
poses of § 52-584 until April 6, 2015. She argue[d] that
actionable harm occurred on April 6 when she learned
that the defendants’ negligence had caused her injury.’’
Id., 345.
The Appellate Court reversed the judgment of the
trial court. Id., 348. In doing so, the Appellate Court
construed the term ‘‘injury’’ for purposes of § 52-584
consistent with this court’s decision in Lagassey v.
State, 268 Conn. 723, 747–49, 846 A.2d 831 (2004). The
Appellate Court noted that, in Lagassey, this court
explained that, as used in § 52-584, ‘‘the term ‘injury’
is synonymous with ‘legal injury’ or ‘actionable harm.’
‘Actionable harm’ occurs when the plaintiff discovers,
or in the exercise of reasonable care, should have dis-
covered the essential elements of a cause of action.’’
Id., 748; see Peek v. Manchester Memorial Hospital,
supra, 193 Conn. App. 345 (quoting Lagassey). This
court also explained that ‘‘actionable harm does not
occur until the plaintiff discovers or should have discov-
ered that the harm complained of was caused by the
negligence of the defendant.’’ (Emphasis in original.)
Lagassey v. State, supra, 747; accord Peek v. Manchester
Memorial Hospital, supra, 346 (quoting Lagassey).
Applying this court’s interpretation of § 52-584 from
Lagassey, the Appellate Court concluded that ‘‘the evi-
dence before the trial court demonstrated a genuine
issue of material fact as to when the plaintiff discovered
her injury as contemplated by § 52-584 . . . .’’ Peek v.
Manchester Memorial Hospital, supra, 193 Conn. App.
339. Accordingly, the Appellate Court concluded that
the trial court should not have granted the defendants’
motion for summary judgment, and it reversed the judg-
ment of the trial court. Id., 348.
Thereafter, the defendants sought certification to
appeal, which we granted, limited to the following issue:
‘‘Did the Appellate Court correctly conclude that there
existed a genuine issue of material fact as to whether
the plaintiff’s action was barred by the two year statute
of limitations set forth in . . . § 52-584?’’ Peek v. Man-
chester Memorial Hospital, 334 Conn. 906, 220 A.3d
801 (2019).
On appeal to this court, the defendants assert that
the Appellate Court misapplied this court’s precedent
under § 52-584 to the facts of the present case and relied
on the immaterial fact of when the plaintiff became
aware that the defendants were responsible for her
safety. They further argue that this court should con-
strue § 52-584 consistent with the plain meaning rule
of General Statutes § 1-2z, and that such a construction
would require reversal of the judgment of the Appellate
Court. We disagree and, accordingly, affirm the judg-
ment of the Appellate Court.
‘‘The scope of our appellate review depends [on] the
proper characterization of the rulings made by the trial
court. . . . When . . . the trial court draws conclu-
sions of law, our review is plenary and we must decide
whether its conclusions are legally and logically correct
and find support in the facts that appear in the record.’’
(Internal quotation marks omitted.) Ugrin v. Cheshire,
307 Conn. 364, 389, 54 A.3d 532 (2012). In the present
case, the trial court granted the defendants’ motion
for summary judgment on the ground that the plaintiff
failed to demonstrate a genuine issue of material fact
regarding whether she initiated this action within two
years of suffering an ‘‘injury,’’ as required by § 52-584. To
the extent that determining whether summary judgment
was appropriate in this case is based on interpreting
§ 52-584, our review is plenary. See, e.g., Shoreline Shell-
fish, LLC v. Branford, 336 Conn. 403, 410, 246 A.3d 470
(2020).
Before addressing the defendants’ specific argu-
ments, we lay out this court’s long-standing interpreta-
tion of the term ‘‘injury’’ for purposes of § 52-584. We
begin with the statutory language. General Statutes
(Rev. to 2015) § 52-584 provides in relevant part: ‘‘No
action to recover damages for injury to the person, or
to real or personal property, caused by negligence, or
by reckless or wanton misconduct, or by malpractice
of a . . . hospital . . . 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 . . . .’’
In considering the meaning of the term ‘‘injury’’ for
purposes of § 52-584, however, we do not write on a
clean slate. In 2004, in Lagassey, this court took the
‘‘opportunity to restate the correct legal standard by
which to evaluate the timeliness of causes of action
in negligence.’’ (Emphasis added.) Lagassey v. State,
supra, 268 Conn. 748. Relying on a case that dated back
to 1986, this court explained that ‘‘[t]he limitation period
for actions in negligence begins to run on the date
when the injury is first discovered or in the exercise
of reasonable care should have been discovered. See
General Statutes §§ 4-148 (a)3 and 52-584. In this regard,
the term ‘injury’ is synonymous with ‘legal injury’ or
‘actionable harm.’ ‘Actionable harm’ occurs when the
plaintiff discovers, or in the exercise of reasonable care,
should have discovered the essential elements of a
cause of action. . . . A breach of duty by the defendant
and a causal connection between the defendant’s
breach of duty and the resulting harm to the plaintiff
are essential elements of a cause of action in negligence;
they are therefore necessary ingredients for ‘ ‘‘action-
able harm.’’ ’ . . . Furthermore, ‘actionable harm’ may
occur when the plaintiff has knowledge of facts that
would put a reasonable person on notice of the nature
and extent of an injury, and that the injury was caused
by the negligent conduct of another.’’ (Citations omit-
ted; footnote added.) Lagassey v. State, supra, 748–49,
quoting Catz v. Rubenstein, 201 Conn. 39, 44, 47, 513
A.2d 98 (1986). In discussing the term ‘‘injury,’’ this
court further explained that it has ‘‘repeatedly stated
that ‘an injury occurs when a party suffers some form
of actionable harm.’ . . . This court first used the term
‘actionable harm’ in 1984, in Burns v. Hartford Hospi-
tal, [192 Conn. 451, 460, 472 A.2d 1257 (1984)].’’ (Cita-
tions omitted.) Lagassey v. State, supra, 739.
After Lagassey, this court has uniformly reaffirmed
the definition of ‘‘actionable harm.’’ See, e.g., Kelly v.
University of Connecticut Health Center, 290 Conn.
245, 255, 963 A.2d 1 (2009) (‘‘The discovery of the pres-
ence of a foreign object in the body of a person who
recently has undergone a medical procedure presup-
poses discovery of the ‘essential elements of a cause
of action in negligence,’ as required by the standard
this court articulated in Lagassey v. State, supra, 268
Conn. 748. Thus, when the plaintiff discovered the pres-
ence of the laser fibers sometime in 2000, he became
aware of actionable harm within the meaning of § 4-
148 and the one year limitation period began to run.’’);
Tarnowsky v. Socci, 271 Conn. 284, 297, 856 A.2d 408
(2004) (relying on definition of ‘‘actionable harm’’ from
Lagassey and concluding that ‘‘the two year statute of
limitations set forth in § 52-584 does not begin to run
until a plaintiff knows, or reasonably should have
known, the identity of the tortfeasor’’). Our case law
is thus quite clear that ‘‘injury,’’ as used in § 52-584,
means actionable harm, i.e., when the plaintiff discovers
or should have discovered that the harm complained
of was caused by the negligence of the defendant.
Understanding that this court has consistently con-
strued the term ‘‘injury’’ to mean ‘‘actionable harm,’’
we turn to the facts of the present case. Here, it is
undisputed that the plaintiff fell on February 10, 2015,
while a patient at Manchester Memorial Hospital. It is
also undisputed that she knew that she fell and that
she knew she suffered some physical harm as a result
of that fall. On the basis of those facts, the defendants
filed a motion for summary judgment, claiming that the
plaintiff’s claims were barred by the statute of limita-
tions set forth in § 52-584. Specifically, the defendants
asserted that ‘‘the plaintiff claims that she suffered injur-
ies as a result of a fall that occurred on February 10,
2015, when she was a patient at [Manchester Memorial
Hospital]. Because there is no issue of material fact
that the plaintiff delivered the writ, summons and com-
plaint to the state marshal for service on May 22, 2017,
beyond the applicable statute of limitations set forth
in . . . § 52-584, the plaintiff is barred from bringing
these claims as a matter of law.’’
In response, the plaintiff submitted an opposition to
the defendants’ motion for summary judgment, asserting
that she ‘‘was not aware that the defendants’ conduct
or lack thereof was the cause of her injury until . . .
April 6, 2015.’’ In support of her opposition, the plaintiff
submitted an affidavit. In that affidavit, the plaintiff
averred that ‘‘I was unaware [on February 10, 2015],
what was the cause of my fall.’’ The plaintiff further
averred that, ‘‘[o]n or about April 6, 2015, staff at the
. . . doctor’s office informed me [that] a nurse or
nurse’s aide should have been responsible for my safety
while inpatient at [Manchester Memorial Hospital].’’
In considering the plaintiff’s claim, it is important to
note that ‘‘the determination of when a plaintiff in the
exercise of reasonable care should have discovered
‘actionable harm’ is ordinarily a question reserved for
the trier of fact.’’ Lagassey v. State, supra, 268 Conn.
749; see, e.g., Taylor v. Winsted Memorial Hospital,
262 Conn. 797, 810, 817 A.2d 619 (2003) (‘‘because the
determination of reasonable care is a question of fact,
it was up to the jury to determine whether the plaintiff
exercised reasonable care in the discovery of his injury’’).
Furthermore, as we explained previously in this opin-
ion, ‘‘actionable harm does not occur until the plaintiff
discovers or should have discovered that the harm com-
plained of was caused by the negligence of the defen-
dant.’’ (Emphasis in original.) Lagassey v. State, supra,
268 Conn. 747. Bearing in mind that a court, in deciding
a motion for summary judgment, must view the facts
in the light most favorable to the nonmoving party, the
fact that the plaintiff averred that she did not know the
cause of her fall or that the defendants were responsible
for her safety while she was inpatient at Manchester
Memorial Hospital until April 6, 2015, is sufficient to
create a genuine issue of material fact regarding when
her actionable harm occurred.
The defendants did not submit any evidence in sup-
port of their motion for summary judgment establishing
that the plaintiff’s representation in this regard could
not have been credited by a reasonable fact finder.
Indeed, the defendants submitted no evidence to con-
tradict her representation on this point. Because the
determination of when a plaintiff in the exercise of
reasonable care should have discovered actionable
harm is ordinarily a question reserved for the trier of
fact, we cannot conclude that the Appellate Court incor-
rectly determined that there was a genuine issue of
material fact. In other words, at this early stage of the
proceedings, and without other evidence from the
defendants, we cannot conclude that the plaintiff’s
statement that she did not know the causal connection
between her physical harm and the negligence of the
defendants until April 6, 2015, was unreasonable as a
matter of law.
With this background in mind, we now turn to the
defendants’ specific claims in the present case. The
defendants first assert that the Appellate Court ‘‘relied
on an immaterial fact,’’ namely, the fact that ‘‘the plain-
tiff was told on April 6, 2015, that [the defendants] were
responsible for her safety.’’ The defendants assert that
this is not a material fact, but a specific legal theory.
We disagree.
As we explained in this opinion, this court has consis-
tently concluded that the plaintiff’s knowledge of the
causal connection between the defendants’ alleged neg-
ligence and her physical harm is a material fact because
it begins the accrual of the statute of limitations under
§ 52-584. Therefore, without knowledge of the causal
connection to the defendants’ negligence, the plaintiff
did not experience any actionable harm. Accordingly,
we conclude that the Appellate Court properly relied
on the fact that there was a genuine issue of material
fact regarding when the plaintiff knew that her physical
harm was a result of the defendants’ negligence.
The defendants next claim that the Appellate Court
misapplied this court’s precedent to the facts of this
case. Specifically, the defendants claim that the Appel-
late Court improperly applied what the defendants call
failure to diagnose or latent injury cases to the facts of
this case because the plaintiff’s physical injuries were
obvious. We disagree.
Nothing in Lagassey or its progeny indicates that
Lagassey’s definition of ‘‘actionable harm’’ is only appli-
cable to some actions for negligence. To the contrary,
that definition is applicable to all actions subject to
§ 52-584, regardless of whether the physical harm is
obvious or latent. As we have explained, the statute of
limitations begins to run, not when the plaintiff knows
that she has suffered a physical harm, but when she
knows that the physical harm suffered ‘‘was caused by
the negligent conduct of another.’’ Lagassey v. State,
supra, 268 Conn. 749. There may be many instances in
which a plaintiff’s actual or constructive knowledge of
causation and negligence will arise at the same time as
her knowledge that she has sustained physical harm.
In those cases, the statute of limitations begins to run
immediately, not because the injury is obvious but,
rather, because the plaintiff is aware of both the injury
and the defendant’s negligence.
Nevertheless, there are also times when a plaintiff
may know that she has suffered physical harm, but she
may not know that the harm was caused by the negligent
conduct of another. In those cases, the statute of limita-
tions does not begin to run until the plaintiff discovers
or reasonably should have discovered that the defen-
dant’s negligence was the cause of her harm. The defini-
tion of ‘‘actionable harm’’ is applicable to both scenar-
ios.
A review of Catz v. Rubenstein, supra, 201 Conn.
39, exemplifies this principle. Catz involved a medical
malpractice action in which the coexecutors of the
estate of the decedent, Elaine S. Foster, claimed that
the defendant physician, Stephen R. Rubenstein, failed
to properly diagnose Foster’s breast cancer. See id.,
40, 41. The trial court granted Rubenstein’s motion for
summary judgment on the ground that the action was
time barred under the applicable statute of limitations
because Foster did not initiate it within two years of
her cancer diagnosis. See id., 40–41.
In that case, Foster ‘‘consulted . . . Rubenstein, a
physician who practiced general internal medicine,’’ in
July, 1979. Id., 40. During a physical exam, Rubenstein
noted a lump in Foster’s breast and ordered a mammo-
gram. Id. Thereafter, ‘‘[i]n early August, 1979, [Rubenstein]
informed Foster that the mammogram was negative for
cancer . . . .’’ Id.
In January, 1980, Foster discovered another lump and
spoke to Rubenstein on the telephone, and Rubenstein
told her ‘‘she had a propensity to fatty tissue, that he
did not think it was anything serious, and that there
was no cause for concern.’’ Id., 40–41. In April, 1980,
Foster again contacted Rubenstein because one of the
lumps had become larger. Id., 41. On April 21, 1980,
Rubenstein examined Foster for the second time and
ordered another mammogram, which indicated a malig-
nancy. Id. By May, 1980, Foster was diagnosed with
cancer. See id.
In April, 1982, Foster sought treatment from Horace
Stansel of the Yale Medical School. See id., 42. At that
point, Stansel informed Foster that, at the time she
was examined by Rubenstein in August, 1979, she had
cancer in her left breast. See id.
Thereafter, Foster commenced an action for medical
malpractice on June 11, 1982. Id., 41. Specifically, she
claimed that Rubenstein ‘‘negligently failed to prescribe
or recommend further diagnostic tests or treatment for
Foster and negligently failed to obtain the opinion of
or refer her to a physician who specialized in the recog-
nition and treatment of potential malignancies.’’ Id.
Rubenstein filed a motion for summary judgment,
asserting that the claims were barred under § 52-584
because they were not brought within two years from
the date Foster was diagnosed with cancer. See id.,
40– 41. The trial court granted Rubenstein’s motion for
summary judgment, and the coexecutors, who were
substituted as plaintiffs after Foster died, appealed.
See id.
The coexecutors conceded that Foster became aware
of her cancer diagnosis in May, 1980. See id., 41–42.
Nevertheless, they asserted ‘‘that there was no evidence
submitted with [Rubenstein’s] motion for summary
judgment and no facts established that showed when
Foster discovered or in the exercise of reasonable care
should have discovered that she had cancer in her left
breast when she was initially examined and diagnosed
by Rubenstein or that her condition at that time was
related to the cancer discovered on May 1, 1980. The
[coexecutors] claim[ed], on appeal, that Foster first
became aware of that possibility when she was advised
to that effect by . . . Stansel . . . in April, 1982, and
that she did not therefore discover her ‘injury’ until that
date.’’ Id., 42.
This court agreed with the coexecutors, explaining
that ‘‘[Rubenstein’s] affidavit and the other documents
submitted in support of his motion for summary judg-
ment pinpoint when [Rubenstein] examined Foster and
initially diagnosed her condition and when she became
aware that she had cancer. They do not, however, dis-
close when Foster discovered or in the exercise of
reasonable care should have discovered that
[Rubenstein] was negligent in his examination, diagno-
sis, and treatment and the causal nexus, if any, between
his alleged negligence and the metastasis of her cancer.
[Thus, there remained] a genuine issue of material fact
[that] was not resolved and the trial court erred in
granting [Rubenstein’s] motion for summary judgment.’’
Id., 44.
Similar to Catz, in the present case, although the
plaintiff knew that she suffered physical harm when
she fell on February 10, 2015, it was not until April 6,
2015, that she discovered the causal nexus between the
defendants’ alleged negligence and her injuries from
the fall. At this preliminary, summary judgment stage,
we do not know whether this delay in discovering
actionable harm was reasonable, but, considering the
facts in the light most favorable to the nonmoving party,
we conclude that the Appellate Court properly applied
this court’s precedent and the ‘‘actionable harm’’ stan-
dard to the facts of this case.
The defendants assert that the present case is more
similar to Burns v. Hartford Hospital, supra, 192 Conn.
451, and that the Appellate Court should have applied
Burns to the facts of the present case. We disagree.
Burns is distinguishable based on the pivotal fact that,
in that case, the minor plaintiff, Bryan Burns, and his
mother, Barbara Burns, who brought the action on Bry-
an’s behalf, were made aware of the connection
between the physical harm and the defendants’ negli-
gence approximately three years before the action was
commenced. See id., 456–57.
Bryan had been admitted to the defendant hospital
on October 23, 1975, for treatment of injuries to his
upper body and torso that he had suffered in an automo-
bile accident. Id., 452. While in the hospital, he required
intravenous fluids, which were administered through
intravenous tubes that were inserted in his lower
legs. Id.
During his hospital stay, Bryan began to experience
pain, redness and swelling in one of his legs, near the
area where the intravenous tubes were inserted. See
id. On or about November 10, 1975, Ronald W. Cooke,
Bryan’s physician, diagnosed Bryan with a streptococ-
cus infection and told his mother, Barbara Burns, that
the infection was caused by the use of contaminated
intravenous tubes. Id., 452–53. Cooke informed Barbara
that Bryan’s infection ‘‘had probably reached the muscle
and had possibly reached the bone as well.’’ Id., 453.
Cooke also told Barbara that the infection could be
treated with antibiotics and would heal fully in time.
See id., 453, 459.
After Bryan was released from the hospital and began
walking again, his gait progressively worsened, and his
left foot and calf were not growing properly. See id.,
453. Eventually, in August, 1977, Barbara took Bryan
to another physician, who diagnosed him as having
a buildup of scar tissue caused by the streptococcus
infection, which was impeding muscle development. Id.
Thereafter, in November, 1978, Barbara, on behalf of
Bryan, brought an action against Hartford Hospital and
Cooke, alleging that they acted negligently in failing to
diagnose accurately and treat properly the infection
in his leg. See id., 452–53. The defendants moved for
summary judgment, claiming that the action was barred
by the statute of limitations set forth in § 52-584 because
it was brought more than two years after Barbara
became aware that Bryan suffered an infection from the
contaminated intravenous tubes and that the buildup
of scar tissue was just a manifestation of that infection.
See id., 453–54.
The trial court rendered summary judgment in favor
of both Hartford Hospital and Cooke on the ground
that the action was barred by the statute of limitations.
See id., 454. The only issue on appeal to this court was
whether the claim against Hartford Hospital—for its
negligence in causing the infection—was barred by the
statute of limitations. Id.
On appeal, this court considered Barbara’s assertion,
in her affidavit in opposition to Hartford Hospital’s
motion for summary judgment, that she did not discover
Bryan’s injury until August, 1977, because it was not
until then that she was informed that there was muscle
damage in his leg. Id., 456. It also considered Barbara’s
assertion, during her deposition, that ‘‘she delayed
bringing suit against Hartford Hospital because she
relied on [Cooke’s] prognosis of complete recovery
from the infection.’’ Id., 458.
This court rejected Barbara’s claims, explaining that
‘‘Cooke’s alleged misdiagnosis . . . did not toll the
statute of limitations as it applied to Hartford Hospital.
The injury that [Barbara] attributes to the hospital’s
negligence, i.e., the streptococcus infection, was
inflicted and discovered in November, 1975. At that
point the hospital’s alleged breach of duty was com-
plete. [Barbara] has not alleged that the hospital staff
in any way concealed the extent of the injury or misled
her about its cause. The act of an independent interven-
ing third party, who may have misled [Barbara] about
the injury’s seriousness or even compounded the harm
by failing to render effective treatment, cannot extend
the hospital’s liability beyond the statutory limitation
period.’’ (Footnote omitted.) Id., 459.
This court further explained that § 52-584 ‘‘requires
that the injured party bring suit within two years of
discovering the injury. . . . In this context an injury
occurs when a party suffers some form of actionable
harm. The harm need not have reached its fullest mani-
festation before the statute begins to run. Because [Bar-
bara] did not bring suit within two years of discovering
the injury, the trial court correctly ruled that the action
was barred by the statute of limitations.’’ (Citation omit-
ted.) Burns v. Hartford Hospital, supra, 192 Conn. 460.
The defendants in the present case attempt to liken
the facts of the present case to the facts of Burns,
claiming that, in both cases, there were ‘‘obvious injur-
ies,’’ and, therefore, that the statute of limitations begins
to run at the time the physical harm is sustained. We
disagree. Burns is distinguishable from the present case
because, in Burns, Barbara knew of both the physical
harm and the causal connection to the defendants’ negli-
gence more than two years prior to initiating the action.
As this court explained, ‘‘[b]y about November 10, 1975,
[Barbara] became fully aware not only of Bryan’s injury
but also of its cause. She testified in her deposition that
on or about November 10 [1975], [Cooke] told her that
[one of Bryan’s legs] was infected and that the infection
was caused by contaminated intravenous tubes that
hospital staff had placed in the leg . . . .’’ Burns v.
Hartford Hospital, supra, 192 Conn. 456. Therefore,
Barbara was informed that the physical harm to
Bryan—the streptococcus infection—was caused by
the defendants’ negligence—use of contaminated intra-
venous tubes—on November 10, 1975, but the action
in Burns was not brought until November, 1978. See
id., 452, 456.
In Burns, Barbara admitted that she was informed
of the hospital’s negligence on November 10, 1975,
which was more than two years before the action was
commenced. Unlike in Burns, the plaintiff in the present
case alleged in her affidavit that she did not become
aware of the defendants’ alleged negligence until April
6, 2015, which—after factoring in the ninety day exten-
sion—was less than two years before she brought her
medical malpractice action.
We reject the defendants’ contention that there are
two separate standards for negligence claims, depending
on whether the harm is latent or obvious. Instead, we
agree with the Appellate Court that this court has con-
sistently defined ‘‘injury’’ as actionable harm for pur-
poses of § 52-584, and that actionable harm requires
both knowledge of the physical harm and knowledge
of its connection to the defendants’ negligence. Accord-
ingly, we conclude that the Appellate Court properly
applied this court’s precedent to the facts of the pres-
ent case.
Finally, the defendants assert that the plain meaning
of § 52-584 supports the judgment of the trial court in
the present case. The defendants claim that, when this
court decided Lagassey, it failed to follow the plain
meaning rule codified in § 1-2z. Specifically, the defen-
dants claimed that, because § 1-2z became effective on
October, 1, 2003, and Lagassey was decided thereafter,
on May 4, 2004, the court was required to, but improp-
erly neglected to, apply the plain meaning rule of § 1-
2z when it interpreted the language in § 52-584. Accord-
ingly, the defendants assert that this court should aban-
don the interpretation of ‘‘injury’’ adopted in Lagassey
in favor of a new interpretation of the term ‘‘injury,’’ in
which this court would follow the plain meaning rule
of § 1-2z. They contend that the plain meaning rule
would dictate that we interpret the term ‘‘injury’’ in
§ 52-584 to mean ‘‘ ‘hurt, damage, or loss sustained,’ ’’
as it is defined in the dictionary. We disagree.
In Lagassey, this court was interpreting the statute
of limitations set forth in § 4-148 (a), and it recognized
that our interpretation of ‘‘injury’’ for purposes of § 52-
584 was relevant to that interpretation.4 At the time this
court decided Lagassey, this court already had a rich
history of interpreting ‘‘injury’’ for purposes of both
§§ 4-148 (a) and 52-584. Indeed, this court had repeat-
edly addressed the commencement of the statutes of
limitations contained in §§ 4-148 (a) and 52-584 well
before § 1-2z came to be. Thus, in point of fact, the
court in Lagassey was not interpreting the term ‘‘injury’’
anew in 2004.
In fact, Lagassey transparently explained that ‘‘we
have repeatedly stated that an injury occurs when a
party suffers some form of actionable harm’’; (internal
quotation marks omitted) Lagassey v. State, supra, 268
Conn. 739; see id. (citing cases); meaning ‘‘the plaintiff
discovers an injury and causation.’’ (Emphasis in origi-
nal.) Id., 743; see, e.g., Burns v. Hartford Hospital,
supra, 192 Conn. 460 (‘‘[i]n [the context of § 52-584]
an injury occurs when a party suffers some form of
actionable harm’’); see also, e.g., Catz v. Rubenstein,
supra, 201 Conn. 44 (limitation period accrues on date
plaintiff discovered or should have discovered ‘‘causal
nexus’’ between alleged negligence and subsequent
injury). Indeed, Lagassey merely reaffirmed this court’s
interpretation of ‘‘injury’’ for purposes of §§ 4-148 (a)
and 52-584 as ‘‘actionable harm’’ by reviewing this
court’s prior cases in which the term ‘‘injury’’ had been
interpreted.
We see no reason to abandon this court’s long held
interpretation of the term ‘‘injury,’’ which dates back
to 1984, simply because the legislature later enacted
§ 1-2z. We previously have addressed the issue of
whether the passage of § 1-2z required us to abandon
prior interpretations of statutes in order to comply with
§ 1-2z. In addressing that question, we have determined
that we do not abandon prior interpretations of statu-
tory language. Rather, even after the passage of § 1-2z,
it is customary for us to begin with this court’s prior
interpretations of statutes in previous cases. See, e.g.,
Hummel v. Marten Transport, Ltd., 282 Conn. 477, 501,
923 A.2d 657 (2007). To be sure, in Hummel, we
explained: ‘‘There is nothing in the legislative history
[of § 1-2z] to suggest that the legislature also intended
to overrule every other case in which our courts, prior
to the passage of § 1-2z, had interpreted a statute in a
manner inconsistent with the plain meaning rule, as
that rule is articulated in § 1-2z. We are unwilling to
impute to the legislature such a sweeping purpose in
the absence of convincing evidence of that purpose.
Because neither the language nor the legislative history
of § 1-2z provides any such evidence, we conclude that
§ 1-2z does not overrule our prior case law . . . .’’ Id.
In other words, after the passage of § 1-2z in 2003, our
courts were directed to interpret statutes in accordance
with the plain meaning rule embodied in § 1-2z, unless
the statute being interpreted had been interpreted pre-
viously by this court prior to the passage of § 1-2z.5 The
term ‘‘injury’’ in § 52-584 had already been interpreted
well before the passage of § 1-2z.
As the court noted in Lagassey, prior to that case,
this court had ‘‘repeatedly stated that ‘an injury occurs
when a party suffers some form of actionable harm.’
. . . This court first used the term ‘actionable harm’ in
1984, in Burns v. Hartford Hospital, supra, [192 Conn.]
460.’’ (Citations omitted.) Lagassey v. State, supra, 268
Conn. 739. We elaborated further on the meaning of
actionable harm two years later, in 1986, when we
decided Catz. See Catz v. Rubenstein, supra, 201
Conn. 45–47.
Accordingly, in Lagassey, this court did not reach
a new interpretation of the meaning of ‘‘injury’’ for
purposes of §§ 4-148 (a) and 52-584. This court already
had construed § 52-584 in its previous cases, and, in
Lagassey, it simply restated and followed that long held
construction. In fact, any doubt on this point is extin-
guished by this court’s decision in Lagassey itself, in
which this court explicitly stated that ‘‘we take this
opportunity to restate the correct legal standard by
which to evaluate the timeliness of causes of action
in negligence.’’ (Emphasis added.) Lagassey v. State,
supra, 268 Conn. 748. That standard is actionable harm.
It has been more than thirty-five years since the term
‘‘injury’’ was first defined as actionable harm by this
court in Burns v. Hartford Hospital, supra, 192 Conn.
460, and approximately eighteen years since this court
reaffirmed the construction in Lagassey v. State, supra,
268 Conn. 739. During that time, our courts, including
this court, have repeatedly relied on the interpretation
of the term ‘‘injury’’ as actionable harm, and the legisla-
ture has not sought to correct that construction of §§ 4-
148 (a) and 52-584. Thus, the doctrine of stare decisis
and the tenet of statutory interpretation that cautions
against overruling case law involving our construction
of a statute, if the legislature reasonably may be deemed
to have acquiesced in that construction, counsel against
accepting the defendants’ invitation to revisit Lagas-
sey’s interpretation of §§ 4-148 (a) and 52-584. See, e.g.,
Hummel v. Marten Transport, Ltd., supra, 282 Conn.
494–95 (‘‘[o]nce an appropriate interval to permit legis-
lative reconsideration has passed without corrective
legislative action, the inference of legislative acquies-
cence places a significant jurisprudential limitation on
our own authority to reconsider the merits of our earlier
decision’’ (internal quotation marks omitted)). Accord-
ingly, we reject the defendants’ invitation to implicitly
overrule Lagassey in order to apply the plain mean-
ing rule.
Even if we agreed with the defendants that we should
not rely on Lagassey but should instead interpret § 52-
584 consistent with § 1-2z, we would reach the same
result. The term ‘‘injury’’ in § 52-584 is used within the
phrase ‘‘when the injury is first sustained or discovered
or in the exercise of reasonable care should have been
discovered . . . .’’ General Statutes (Rev. to 2015) § 52-
584. Thus, we would conclude that, as used within that
statutory phrase, the term ‘‘injury’’ is not clear and
unambiguous. There are two plausible interpretations.
On one hand, the term could mean ‘‘actionable harm,’’
as this court has previously interpreted the term for
purposes of § 52-584. On the other hand, injury could
mean ‘‘hurt, damage, or loss,’’ as the defendants assert.
(Internal quotation marks omitted.) Accordingly, we
would need to turn to the legislative history of the
statute and to engage in much of the same analysis that
this court did in Catz. See Catz v. Rubenstein, supra,
201 Conn. 45–47. After reviewing the legislative history,
the court in Catz concluded that the term ‘‘injury,’’ in
this context, means ‘‘actionable harm . . . .’’ (Internal
quotation marks omitted.) Id., 49. We agree with that
conclusion.
Prior to 1957, the statutory predecessor to § 52-584
provided: ‘‘No action to recover damages for injury to
the person, or to real or personal property, caused by
negligence, or by reckless or wanton misconduct, or
by malpractice of a physician, surgeon, dentist, chiropo-
dist, chiropractor, hospital or sanatorium, shall be
brought but within one year from the date of the act
or omission complained of, except that a counter-claim
may be interposed in an action which has been brought
within the year at any time before the pleadings in
such action are finally closed.’’ General Statutes (1949
Rev.) § 8324.
In 1957, the legislature enacted No. 467 of the 1957
Public Acts, which replaced the language ‘‘of the act
or omission complained of’’ with ‘‘when the injury is
first sustained or discovered or in the exercise of rea-
sonable care should have been discovered, and except
that no such action may be brought more than three
years from the date of the act or omission complained
of . . . .’’ In Catz, this court explained: ‘‘The testimony
in 1957 before the General Law Committee of the legisla-
ture, which considered the predecessor to § 52-584,
indicates that the use of the term ‘injury’ was a con-
scious reaction to, and an attempt to alleviate the draco-
nian effect of, two cases, Dincher v. Marlin Firearms
Co., 198 F.2d 821 (2d Cir. 1952), and Vilcinskas v. Sears,
Roebuck & Co., 144 Conn. 170, 174, 127 A.2d 814 (1956).
In those cases, the United States [Court of Appeals for
the Second Circuit] and this court concluded that the
language ‘act or omission complained of’ in [the statu-
tory predecessor to § 52-584] required a holding that
the statute of limitations began running on the date of
the defendant’s negligence and that a plaintiff’s cause
of action could be barred before the plaintiff suffered
any harm and therefore before a cause of action had
accrued.’’ (Footnote omitted.) Catz v. Rubenstein,
supra, 201 Conn. 46.
The legislative history of § 52-584 also reveals that,
when testifying in favor of the passage of No. 467 of the
1957 Public Acts before the General Law Committee,
Attorney Charles Hunt testified that the act, ‘‘[i]t seems
to me in keeping with the traditional thinking of [s]tat-
utes of [l]imitation[s], the time ought to begin to run
at the time that the injured person acquires his right of
action . . . .’’ Conn. Joint Standing Committee Hear-
ings, General Law, Pt. 1, 1957 Sess., p. 145. Therefore,
the legislative history of § 52-584 supports this court’s
prior conclusion that ‘‘injury,’’ as used in § 52-584, was
intended to mean a legally recognized injury, not just
physical hurt or loss, as the defendants assert.
Moreover, the fact that the legislature removed the
‘‘act or omission complained of’’ language from the
statute of limitations, but not from the three year statute
of repose portion of the statute, is further evidence that
the legislature intended for the starting point of the
statute of limitations to be something other than the
‘‘hurt, damage, or loss.’’ (Internal quotation marks omit-
ted.) Accordingly, even if we ignore Lagassey and,
instead, apply § 1-2z to § 52-584, we would reach the
same interpretation of § 52-584 as this court reached
in Lagassey.
On the basis of the foregoing, we conclude that the
Appellate Court correctly concluded that, viewing the
facts in the light most favorable to the plaintiff, there
is a genuine issue of material fact. Therefore, the Appel-
late Court properly reversed the judgment of the trial
court.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* This case was argued before a panel of this court consisting of Chief
Justice Robinson and Justices McDonald, D’Auria, Mullins, Kahn and Ecker.
Justice D’Auria has since been removed from the panel.
** February 2, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
General Statutes (Rev. to 2015) § 52-584 provides in relevant part that
‘‘[n]o action to recover damages for injury to the person, or to real or personal
property, caused by negligence, or by reckless or wanton misconduct, or
by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor,
hospital or sanatorium, 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 . . . .’’
Hereinafter, unless otherwise indicated, all references to § 52-584 in this
opinion are to the 2015 revision of the statute.
2
General Statutes (Rev. to 2015) § 52-190a (b) provides in relevant part:
‘‘Upon petition to the clerk of the court where the civil action will be filed
to recover damages resulting from personal injury or wrongful death, an
automatic ninety-day extension of the statute of limitations shall be
granted . . . .’’
Hereinafter, all references to § 52-190a in this opinion are to the 2015
revision of the statute.
3
Although § 4-148 (a) was the subject of a technical amendment in 2016;
see Public Acts 2016, No. 16-127, § 7; that amendment has no bearing on
the merits of this appeal. In the interest of simplicity, we refer to the current
revision of the statute.
4
‘‘A plain reading of §§ 4-148 (a) and 52-584 reveals that the statutes are
alike in most material respects. Both statutes provide that the limitation
period begins to run when a plaintiff either sustains or discovers the injury
or, in the exercise of reasonable care, should have discovered the injury,
and both statutes contain a three year period of repose. The only material
differences in the two statutes are that § 4-148 (a) allows for a one year
limitation period [whereas] § 52-584 allows for a two year limitation period,
and § 4-148 (a) relates only to actions against the state brought under chapter
53 of the General Statutes.’’ Lagassey v. State, supra, 268 Conn. 738–39.
5
Of course, if the statutory language has been amended since this court’s
prior interpretation, or if the portion of the statute that is at issue has not
already been subject to this court’s interpretation prior to the passage of
§ 1-2z, then § 1-2z must be applied.