The Connecticut Supreme Court overturned a Superior Court ruling, and allowed to move forward a lawsuit alleging medical malpractice killed a 69-year-old Portland woman.
The plaintiffs in that suit, sisters Susan Angersola and Kathleen Thurz, maintain their mother, Patricia Sienkiewicz, died of Stage IV lung cancer because health care providers failed for years to inform her of a large mass found on her lung.
The defendants, which includes Radiologic Associates, Middlesex Hospital and Shoreline Surgical Associates, were successful in Middletown Superior Court in getting the case dismissed because of a five-year statute of limitation on medical malpractice suits in Connecticut. Under Connecticut General Statutes, two criteria must be met before medical malpractice claims can proceed: A lawsuit must be filed within two years of the date of death and an action must be brought within five years of the date of the act of omission that spurs the lawsuit.
The sisters met the first criteria. They filed their lawsuit 13 months after Sienkiewicz died. But in the dispute over whether they were still within the five-year window from the time the medical staff allegedly first spotted the cancerous growth, the Connecticut Supreme Court came down in favor of the plaintiffs and remanded the case back to Superior Court for discovery.
The defense had argued that the date of omission should have been Nov. 5, 2007, when the X-ray showing the mass in Sienkiewicz’s left lung was taken. The lawsuit was filed July 2014, or six and a half years later. But the plaintiffs successfully argued to the Supreme Court that a doctrine called “tolling” came into play, stopping the clock that would have imposed the deadline.
“We argue that the clock really starts ticking when she finds out she has cancer, in April 2012,” said Carey Reilly of Bridgeport-based Koskoff Koskoff & Bieder, co-counsel for the family. The plaintiffs argued the actual act of omission came years after 2007 when it was learned that someone made a mistake in not properly telling the family of the mass. “When she is finally told there is a mass in her lung, it’s huge,” Reilly said. “She died about two years later.”
Reilly said she never got to do discovery because her suit was dismissed almost immediately. Therefore, she said, it’s not clear what doctor or medical personnel made the mistake in not properly citing the mass in reports so the family could be made aware of Sienkiewicz’s condition. The question of what individual made the mistake should be answered after discovery is completed, Reilly told the Connecticut Law Tribune Thursday.
Justice Richard Palmer wrote the Supreme Court’s 5-0 Sept. 21 ruling and noted the plaintiffs have a right to discovery.
“The plaintiffs have a right to explore by whichever method the trial court deems appropriate, that is, limited discovery or an evidentiary hearing,” Palmer wrote.
Said Reilly: “I need to have a mini-trial, or discovery, to find out who screwed up. Everyone is contradicting each other on what they did.”
Reilly said she is seeking a jury trial and said “with wrongful death actions, you do not have to [in the lawsuit] give a certain number of what you are seeking. But we will be seeking at least several millions of dollars.”
Reilly, who said a trial might not start for another two years, said she’s open to settling the case. “What jury could hear the facts of this case and not hold someone responsible for not telling the patient? What jury can listen to the evidence and say someone did not drop the ball? This case is very compelling.”
Middlesex Hospital is represented by John Costa and Liam West, both of Hartford-based Ryan Ryan DeLuca. West told the Connecticut Law Tribune Thursday that the hospital would have no comment on the case.
Michael Rigg and Donna Zito, attorneys with Rocky Hill-based O’Brien Tanski & Young, represent Radiologic Associates. Neither Rigg nor Zito responded to a request for comment.
Ellen Costello of Wallingford-based Del Sole & Del Sole represents Shoreline Surgical Associates. Costello did not respond to a request for comment.
Reilly was assisted on the case by colleague Cynthia Bott.