author: FOTI, J. DUPONT, J.,

text:
    RONDA DREW, ADMINISTRATRIX (ESTATE OF CASSIDY DREW-ANZALONE) ET AL. v. WILLIAM W. BACKUS HOSPITAL ET AL.
    (AC 22986)
    Foti, West and Dupont, Js.
    Argued March 26
    officially released July 1, 2003

      Robert E. Healey, for the appellants (plaintiffs).

      Jeffrey F. Buebendorf for the appellee (named defendant).

      Thomas W. Boyce, Jr., with whom, on the brief, was Jennifer Antognini-O’Neill, for the appellee (defendant Joseph A. Newell).
   Opinion

FOTI, J.

This appeal arises from a medical malpractice action. The plaintiffs, Ronda Drew, both individually and in her capacity as the administratrix of the estate of Cassidy Drew-Anzaione, and Michael Anzalone, appeal from the judgment of the trial court rendered in favor of the defendants, William W. Backus Hospital (hospital) and Joseph A. Newell. The judgment followed the court’s action in granting summary judgment in the defendants’ favor on all counts of the plaintiffs’ operative complaint. On appeal, the plaintiffs challenge the propriety of the court’s ruling. The dispositive issue raised by the plaintiffs is whether the court, in the context of their malpractice claim, properly concluded that no genuine issue of material fact existed and that, as a matter of law, they had failed to demonstrate that the defendants caused the injuiy alleged by the plaintiffs. The plaintiffs also claim that the court improperly granted summary judgment with respect to their claims sounding in bystander emotional distress. We affirm the judgment of the trial court.

The material facts underlying this appeal are not in dispute. In the early afternoon of July 26, 1997, sixteen month old Cassidy Drew-Anzalone, the daughter of plaintiffs Ronda Drew and Michael Anzalone, was brought to the hospital’s emergency room where doctors and medical personnel on the hospital’s staff administered medical treatment to her. The child was taken to the hospital because she had been vomiting, had a fever, was irritable and appeared to be in pain. At all relevant times, Newell was a licensed physician specializing in the area of pediatric medicine, was on the hospital’s staff and possessed admitting privileges to the hospital. One to two hours after the child arrived in the emergency room, Newell examined and assumed responsibility for the child’s care as her attending physician. Newell caused the child to be admitted to a pediatric floor of the hospital; he preliminarily diagnosed her to be suffering from gastroenteritis. At or about 10:20 p.m., the child suffered cardiopulmonary arrest. For the next hour and twenty minutes, Newell and hospital staff members attempted to restore the child’s cardiopulmonary viability. Their efforts were unsuccessful and, at 11:35 p.m., Newell pronounced the child dead. It was later determined that the child had died from an undiagnosed disease that affects heart tissue, known as lymphocytic myocarditis.

In their operative complaint, the plaintiffs alleged that in a number of ways, Newell and the hospital breached the standard of care that they owed to the child. They claimed that Newell was deficient in the quality and frequency of care that he administered to the child. Further, they alleged that Newell breached the duty of care that he owed the child while he was acting within the scope of his apparent authority for the hospital. The plaintiffs also alleged that the hospital breached the standard of care that it owed the child in that the care it provided to the child via its nurse employees was deficient. The plaintiffs Ronda Drew, individually, and Michael Anzalone also alleged that the defendants’ negligent course of conduct in the care of their daughter caused them extreme emotional distress.

The plaintiffs’ operative complaint consisted of six counts. Counts one and two, which sounded in medical malpractice and wrongful death, are alleged by Ronda Drew, in her capacity as administratrix, against Newell and the hospital, respectively. Counts three through six are claims, sounding in bystander emotional distress, brought by Ronda Drew and Michael Anzalone against Newell and the hospital.

The defendants filed motions for summary judgment. The plaintiffs explained clearly the legal basis for their claims in their opposition to the defendants’ motions for summary judgment. The plaintiffs did not allege that Newell violated the duty of care he owed the child by failing to properly diagnose her as suffering from lymphocytic myocarditis. Rather, the gravamen of the plaintiffs’ claim was that on the basis of symptoms being exhibited by the child while she was under Newell’s care, symptoms which he should have better monitored and investigated, the standard of care required Newell to transfer the child to a “pediatric intensive care and/ or tertiary care center several hours before” she experienced cardiopulmonary arrest. Further, the plaintiffs claimed that the evidence demonstrated that if Newell had transferred the child “to a tertiary care center at 5 or 6 o’clock on the day of her admission (approximately three hours or more after her initial arrival at [the hospital] and four to five hours before her cardiopulmonary arrest),” the child would have had a “very good chance of surviving . . . .”

The plaintiffs based their allegation of medical malpractice on a theory of lost chance of survival. The plaintiffs claimed that the defendants breached the duty of care by not providing the child with adequate supportive care, as her medical condition warranted, and that this negligent conduct caused a decreased chance of survival and, ultimately, her death. In support of their claim that the alleged breach of the standard of care caused the injury of which they complain, the plaintiffs submitted deposition testimony and an affidavit from Robert J. Sommer, a physician specializing in pediatric cardiology.

In support of their motions for summary judgment, the defendants argued that the plaintiffs had failed to set forth an evidentiary basis to support their claim that the defendants’ alleged negligence caused the child to suffer a lost chance of survival. The defendants argued, essentially, that viewing the plaintiffs’ proffered evidence in the light most favorable to the plaintiffs’ case, such evidence did not, as a matter of law, support the causal link between the alleged negligent acts and a decreased chance of survival that the plaintiffs bore the burden of proving. The defendants also argued that the plaintiffs’ claims, which sounded in bystander emotional distress, were derivative of the plaintiffs’ malpractice claims. The defendants ar gued that they were entitled to judgment on those claims as a matter of law because they were entitled to judgment as a matter of law on the malpractice claims. Alternatively, the defendants argued that they were entitled to judgment as a matter of law on the claims sounding in bystander emotional distress because Connecticut law does not recognize such claims when they are based on medical malpractice.

The court concluded that as a matter of law, the plaintiffs had failed to demonstrate the essential element of causation. Accordingly, the court granted the defendants’ motions for summary judgment with respect to the medical malpractice counts. The court further concluded that the bystander emotional distress claims of the plaintiffs Ronda Drew and Michael Anzalone were derivative of the malpractice claims and rendered judgment in the defendants’ favor on those claims, solely on that basis, as well.

Before turning to the plaintiffs’ claims, we first set forth our well settled standard of review. “[T]he scope of our review of the granting of a motion for summary judgment is plenary. ... In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” (Internal quotation marks omitted.) Golden v. Johnson Memorial Hospital, Inc., 66 Conn. App. 518, 522-23, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001). In ruling on a motion for summary judgment, it is customary for the court to review documentary proof submitted by the parties to demonstrate the existence or nonexistence of issues of material fact. Practice Book § 17-45.

Practice Book § 17-49 provides in relevant part: “[JJudgment . . . shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Citations omitted; internal quotation marks omitted.) Gaynor v. Payne, 261 Conn. 585, 590-91, 804 A.2d 170 (2002). “The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Golden v. Johnson Memorial Hospital, Inc., supra, 66 Conn. App. 523. Insofar as the court’s legal conclusions are challenged, we must determine whether they are legally and logically correct and find support in the facts contained in the court’s memorandum of decision. Zachs v. Groppo, 207 Conn. 683, 689, 542 A.2d 1145 (1988).

I

The plaintiffs first claim that the court improperly concluded, with regard to their malpractice claim, that no genuine issue of material fact existed as to the child’s chance of survival and that, as a matter of law, the defendants were entitled to judgment in their favor. We disagree.

“[Professional negligence or malpractice . . . [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services. . . . [Malpractice presupposes some improper conduct in the treatment or operative skill [or] . . . the failure to exercise requisite medical skill . . . . [T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254-55, 811 A.2d 1266 (2002).

The general rule regarding causation in medical malpractice cases is clear. “All medical malpractice claims, whether involving acts or inactions of a defendant physician, require that a defendant physician’s conduct proximately cause the plaintiffs injuries. The question is whether the conduct of the defendant was a substantial factor in causing the plaintiffs injury. Expert medical opinion evidence is usually required to show the cause of an injury or disease because the medical effect on the human system of the infliction of injuries is generally not within the sphere of the common knowledge of the lay person.” (Internal quotation marks omitted.) Poulin v. Yasner, 64 Conn. App. 730, 738, 781 A.2d 422, cert. denied, 258 Conn. 911, 782 A.2d 1245 (2001); see also Mather v. Griffin Hospital, 207 Conn. 125, 130-31, 540 A.2d 666 (1988) (plaintiff required to show that defendant’s actions or omissions were substantial factor in producing injuries complained of).

The causation requirement, in the context of the present claim of malpractice, requires further discussion. Here, the plaintiffs do not merely claim that the defendants caused the child to suffer harm. The plaintiffs claim that the victim, suffering from disease, sought care from the defendants and that their negligent care deprived the victim of a likelihood of survival. Proving causation in such a case is difficult because the result complained of, in this case death, might normally be expected to follow from the victim’s disease, rather than from mistreatment by the defendants. It has been stated that “[plaintiffs in such cases are faced with the difficulty of obtaining and presenting expert testimony that if proper treatment had been given, better results would have followed.” Annot., 54 A.L.R.4th 17, § 2 [a] (1987).

“In a loss of chance case, a tortfeasor, through his negligence, causes an individual to lose a chance to avoid some form of physical harm. . . . The traditional standard of the sufficiency of the evidence for submitting a medical malpractice case to the jury has required a plaintiff to adduce evidence of a reasonable medical probability that his injuries were proximately caused by the negligence of one or more of the defendants. This meant demonstrating that it is more likely than not that the injury, harm or condition claimed to have resulted from that negligence, was a substantial factor in causing the injuiy, harm or condition and without which that injury, harm or condition would not have occurred. . . . Where a preexisting condition is involved, a loss of chance plaintiff, in order to meet the traditional standard of causation, must prove that the victim of the alleged negligence probably would have survived had he been treated properly. If, however, the victim probably would not have survived, the cause of his death, if he died, would not have been the defendant’s alleged negligence, but the preexisting condition. So, to satisfy this traditional standard, the plaintiff must prove that prior to the defendant’s alleged negligence, the victim had a chance of survival of at least 51 percent.” (Citations omitted; internal quotation marks omitted.) Borkowski v. Sacheti, 43 Conn. App. 294, 301, 682 A.2d 1095, cert. denied, 239 Conn. 945, 686 A.2d 120 (1996).

This court recognized the existence of the “lost chance doctrine” in LaBieniec v. Baker, 11 Conn. App. 199, 526 A.2d 1341 (1987). In doing so, it adopted the so-called “traditional approach,” as previously described, for demonstrating causation. The estate of the decedent plaintiff in LaBieniec brought an action against the defendant radiologist. The plaintiff alleged that the defendant negligently failed to diagnose the decedent’s lung cancer when he should have and that this failure caused the cancer to grow and spread, thereby decreasing the decedent’s chances for survival. Id., 201. This court stated that the plaintiff, to prevail on her claim that the defendant’s negligent acts decreased the decedent’s chance for successful treatment, “must show (1) that [the decedent had] in fact been deprived of a chance for successful treatment and (2) that the decreased chance for successful treatment more likely than not resulted from the defendant’s negligence. ... In other words, the plaintiff must show that what was done or failed to be done probably would have affected the outcome.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 207. The court stated that the plaintiff was required to prove that “the [defendant’s] negligence in all probability, proximately caused the injury.” (Internal quotation marks omitted.) Id., 208.

This court affirmed the trial court’s decision to grant a directed verdict in the defendant’s favor on the lost chance claim. The court noted that the plaintiff had failed to adduce any evidence in support of her belief that an earlier diagnosis would have affected either the course of treatment or the spread of the decedent’s cancer. The court observed that the plaintiff had “failed to remove the decreased chance of successful treatment theory from the realm of speculation.” Id., 210.

In Borkowski v. Sacheti, supra, 43 Conn. App. 312-15, this court held that it was reversible error for a trial court, without having considered the evidentiary basis of such claim, to refuse to submit a lost chance claim to the jury. The court held that LaBieniec enunciated the proper elements necessary to prove a lost chance claim and stated that a plaintiff, to prove his or her entitlement to recovery, must demonstrate lost chance in terms of probability, not possibility. Id., 311.

In Wallace v. St. Francis Hospital & Medical Center, 44 Conn. App. 257, 688 A.2d 352 (1997), this court reaffirmed its earlier decisions in LaBieniec and Borkowski, which applied the traditional approach to causation in loss of chance cases. The plaintiff in Wallace, the administratrix of the decedent’s estate, brought a malpractice action against the defendant hospital. The plaintiff alleged that the defendant negligently caused her decedent to lose his chance of survival. The decedent died from a massive intraperitoneal hemorrhage while under the care of the hospital’s emergency department. Id., 258-59. The court granted the defendant’s motion for a directed verdict after concluding that the plaintiff failed to prove that the defendant’s acts or omissions either led or contributed to the decedent’s death. Id., 258.

On appeal, the plaintiff claimed, inter alia, that the court improperly granted the motion for a directed verdict in the defendant’s favor because she had produced sufficient evidence to prove that the acts or omissions complained of in the treatment of the decedent, namely, the defendant’s failure to perform surgery on the decedent, caused a lost chance for survival. This court affirmed the trial court’s decision, concluding that the plaintiff had, in fact, failed to demonstrate the causal link necessary to prove her case.

This court explained: “The plaintiff in the present case, as did the plaintiff in LaBieniec, failed to produce sufficient evidence that the decedent had a better than even chance for survival if brought to surgery. At trial, [the plaintiffs expert witness] was asked by the plaintiffs counsel, ‘Do we know, with any certainty, whether surgery would have been successful on [the decedent]?’ To this question, [the plaintiffs expert witness] replied, ‘No.’ The plaintiffs counsel then asked, ‘[H]e could have died in the operating room?’ [The plaintiffs expert witness] replied, ‘Yes.’ Furthermore, the plaintiff did not offer any evidence pertaining to either the cause or source of the decedent’s internal bleeding.

“The jury was left without any evidence to show that the decedent would have had a better than even chance at survival if the defendant’s employees had brought him to surgery. The plaintiffs contention that the decedent lost a chance of survival due to the defendant’s alleged negligence is based on speculation and not on the reasonable probability that LaBieniec requires. We conclude that the trial court properly granted the defendant’s motion for a directed verdict because the plaintiff offered no evidence that the defendant’s alleged negligence was the proximate cause of the decedent’s injury.” Id., 264.

At issue in this appeal is not whether the plaintiffs properly supported their allegations that the defendants breached the duty of care that they owed to the child, but whether the court properly concluded that the defendants had demonstrated that no genuine issue of material fact existed as to whether those alleged acts of malpractice proximately caused the child to suffer a decreased chance of survival and proximately caused her death. Mindful of the foregoing legal principles on which that claim rests, we turn now to the evidence related to the issue of causation that the plaintiffs submitted to the court in support of their complaint.

The plaintiffs’ evidence as to causation came in the form of deposition testimony and an affidavit from Sommer. Sommer testified that children with lymphocytic myocarditis fall into three categories: One third die from the disease, one third recover and do not experience health complications, and one third recover and experience long term health complications. Sommer testified, however, that it was his opinion that it was “impossible to predict” into which of these three categories a patient will fall.

Sommer later testified that given improvements in treatment and in intensive care, some studies indicate that young children with lympocytic myocarditis have a 75 percent chance of surviving and making a complete recovery. Sommer testified that there was no way of knowing whether a particular child “would fit” into the 25 percent of children who did not survive. When asked about prognosticating factors to determine the child’s chances for survival, Sommer testified that “[t]here is no way to prognosticate, especially since they didn’t know she had viral myocarditis.” Sommer stated, however, that he was “not critical at all” of the fact that the defendants failed to properly diagnose the child’s condition.

After discussing further studies concerning children who fully recover from the disease and proceed to lead “very normal lifestyles,” Sommer was asked a series of questions concerning the child in this case:

“Q. And are you in a position to express an opinion to a reasonable degree of medical probability that if this child had been transferred, say, at five or six o’clock on the day of her admission, to a tertiary care center that she would have lived?

“A. I can’t say that definitively, but with a reasonable degree of certainty, she had a very good chance of surviving.

“Q. What does a ‘a very good chance’ mean?

“A. Based on the literature that we have, two-thirds to three-quarters of the patients like her survive with adequate supportive care.

“Q. And there is no way, looking at her condition, to say that she had a greater or lesser prospect of survival than this total cohort of people?

“A. Unfortunately, there is no way to predict.

“Q. The fact that she was not producing urine, the fact that she had fluid in her lungs, the fact that she was experiencing clinical symptoms, ischemic bowel, none of these things tell you?

“A. No. That just tells you the status of her heart at that time.

“Q. And the nature and extent of the lympocytic myocarditis on autopsy, that doesn’t tell us anything about her prospect of survival?

“A. No.”

Later in his deposition testimony, Sommer was asked about a letter sent to him by the plaintiffs’ attorney in which the plaintiffs’ attorney summarized Sommer’s expert opinion regarding causation. Sommer also was asked about his written response to the observations of the plaintiffs’ attorney contained in the letter. The following colloquy took place:

“Q. Page four of [the plaintiffs’ attorney’s] letter . . . says, T understand that based on your knowledge of and experience with myocarditis in children, it is your opinion that if Cassidy had received appropriate supportive care to reduce the load on her heart and myocardium in this fashion before she arrested on July 26,1997, she would have had a 66 percent chance of surviving her illness.’

“Your comment is as follows:

“On page four, first paragraph, with respect to the use of survival statistics: ‘The use of statistics here is misleading. For the entire population of patients presenting with myocarditis there is approximately a 66 percent survival. Such global statistics cannot be applied to any individual patient. In this case, high intensity intervention with intubation after low reduction . . . inotropic support, even extra corporeal membrane oxygenation (ECMO) may have made no difference in the ultimate outcome. There is no way to know retrospectively and, unfortunately, no way to know prospectively before undertaking such a course of treatment. This is not,’ in caps, ‘to imply that had the diagnosis been known such therapy would have had no impact on her chances of survival. It would certainly have improved her chances.’

“Did I read that correctly?

“A. Yes.

“Q. If I understand correctly, assuming that somebody had made the diagnosis and, or had referred her to a tertiary care facility where she received this type of supportive therapy, it would have improved her prospects, but there is no way to know whether even if all that was done, it would have ultimately affected the outcome?

“A. That’s correct.”

Finally, we note that the plaintiffs, after oral argument on the defendants’ motions for summary judgment, submitted to the court an affidavit from Sommer on the issue of causation. Sommer averred therein that he could not state in terms of a specific percentage what the child’s “personal chance of survival with appropriate treatment would have been . . . .” He once again, however, stated that the child’s chances of survival, with appropriate treatment, “certainly would have been much higher than they were with her receiving none of such measures (as unfortunately happened), and that they would have been ‘better than even.’ ”

In its memorandum of decision, the court concluded, as a matter of law, that the foregoing evidence did not prove a causal link between the alleged negligent acts and a lost chance of survival. The court observed that Sommer’s opinion as to the child’s chances of survival was based solely on statistical evidence for all children suffering from lymphocytic myocarditis who receive adequate supportive care. As such, the court reasoned, Sommer’s opinion was not based on the particular child in the present case. The court further reasoned that the statistical evidence Sommer provided as to chances for survival in general would not, as a matter of law, support a finding as to the child’s chances for survival because Sommer did not relate such statistical probabilities to the particular child in this case.

As previously explained, Connecticut permits recovery for a lost chance provided that the evidence would permit a finder of fact to conclude reasonably that “more probably than not, the defendant’s negligence was the direct and proximate cause of a decrease in the chance of successful treatment of the plaintiffs injury.” Poulin v. Yasner, supra, 64 Conn. App. 744. There is no dispute that the plaintiffs needed to elicit expert medical evidence to demonstrate that the defendants caused a lost chance of survival. See Shegog v. Zabrecky, 36 Conn. App. 737, 745-46, 654 A.2d 771, cert. denied, 232 Conn. 922, 656 A.2d 670 (1995). The plaintiffs attempted to surmount that evidentiary burden through Sommer’s expert testimony.

Although the court was bound to evaluate Sommer’s testimony in the light most favorable to the plaintiffs’ case, the court was free to scrutinize the basis of Sommer’s expert opinion. That is so because “expert opinion cannot rest on surmise or conjecture because the trier of fact must determine probable cause, not possible cause. ... In other words, the expert opinion must be based on reasonable probabilities.” (Citations omitted; internal quotation marks omitted.) Gordon v. Glass, 66 Conn. App. 852, 856-57, 785 A.2d 1220 (2001), cert. denied, 259 Conn. 909, 789 A.2d 994 (2002). “Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation. ... To be reasonably probable, a conclusion must be more likely than not. . . . Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.” (Internal quotation marks omitted.) State v. Nunes, 260 Conn. 649, 672, 800 A.2d 1160 (2002).

Under the approach adopted in Connecticut, the plaintiffs had to prove that the child probably would have survived had the defendants treated her in a non-negligent manner. That necessarily required the plaintiffs to prove that prior to the defendants’ alleged negligent acts or omissions, the child had at least a better than even chance of survival with adequate medical care. As previously explained, it is not sufficient for a lost chance plaintiff to prove merely that a defendant’s negligent conduct has deprived him or her of some chance; in Connecticut, such plaintiff must prove that the negligent conduct more likely than not affected the actual outcome.

We conclude that the defendants demonstrated that a genuine issue of material fact did not exist as to whether, prior to their alleged negligent acts or omissions, the child had at least a better than even chance of survival with adequate treatment. The plaintiffs failed to substantiate their adverse claim by demonstrating that such an issue of fact existed. Our holding rests on our conclusion that a rational finder, relying on Sommer’s testimony, could not find that such a chance of survival existed. The issue came up several times during Sommer’s testimony. Sommer testified that with adequate supportive car e, the child “had a very good chance of surviving.” Sommer also opined that with such care, the child would have had “ ‘a better than even chance to survive.’ ” That testimony, however, is not dispositive. We must review the entire substance of Sommer’s testimony to determine if it actually supports such a finding. Having done so, we conclude that it fails to rise to the level of reasonable medical certainty required to demonstrate causation.

The court looked disfavorably on Sommer’s use of statistical data alone as a basis for his opinion as to the child’s chances of survival. We need not reach that issue. The problem with Sommer’s testimony, in our view, is more fundamental; he testified that the statistical evidence on which he based his opinion as to the child’s chance of survival did not relate to that particular child. Sommer, apparently relying solely on general statistical evidence, testified as to a better than average chance of survival. Sommer then testified that the statistical data he relied on “cannot be applied” to the patient at issue in this case. He also testified that he “cannot state whether [the child] would have survived or [state] what her personal chance of survival with appropriate treatment would have been” and testified that there is no way to “prognosticate” as to the child’s chances of survival. For those reasons, it cannot be said that Sommer opined as to the child’s chance of survival with any degree of medical certainty; rather, any opinion appears to be based on mere speculation and is unrelated to the facts of this case. Indeed, characterizing the child’s chance of survival as “impossible to predict,” Sommer testified that he was unable to assign to the child, in terms of a specific percentage, a chance of survival.

The plaintiffs relied on Sommer to demonstrate the causal link essential to their claim. We conclude, as a matter of law, that his testimony does not provide a fact finder a basis on which to find that the child would have had a better than average chance of survival with adequate medical care.

In determining whether a genuine issue of material fact existed, the court must consider the competency of the evidence on which the plaintiffs relied to substantiate their adverse claim. In ruling on a motion for summary judgment, the court does sit as a trier of fact or evaluate the evidence from the perspective of a trier of fact. Its task, however, is to ask whether the state of the evidence on the challenged issue is of such a nature that a fact finder logically and legally could reach a finding either way with respect to the issue. Although we assume that a fact finder reasonably may resolve conflicts within a witness’ testimony, we do not assume that a fact finder may rely on wholly unsupported or internally inconsistent expert testimony in reaching a finding.

In the present case, the fact finder could find only that a better than average chance of survival existed if it relied on Sommer’s testimony. Sommer testified without reservation about “global statistics” related to chances of survival. As our preceding analysis of his testimony details, Sommer then testified that he lacked any basis to apply those statistics to the child’s case and revealed that he essentially could not opine with any degree of medical certainty as to what that particular child’s chances of survival were. There was no basis for a jury to find that the child had a favorable chance of survival. On the basis of Sommer’s testimony, a trier of fact could not reasonably infer otherwise. Expert opinion should apply specifically to the factual scenario that necessitated the expert opinion in the first place. See Wallace v. St. Francis Hospital & Medical Center, supra, 44 Conn. App. 261-62.

The plaintiffs rely on our Supreme Court’s holding in Petriello v. Kalman, 215 Conn. 377, 576 A.2d 474 (1990). The plaintiffs appear to argue that Petriello calls into question the approach to causation that this court has applied in LaBieniec and its progeny. We conclude that the plaintiffs’ reliance on Petriello is to no avail.

In Petriello, our Supreme Court permitted a plaintiff to recover against her physician for a future risk that his negligent treatment of her would cause her injury. Specifically, the plaintiff demonstrated that the defendant physician performed a surgical procedure on her in a negligent manner, caused her to suffer injury and caused her to suffer a risk, from between 8 to 16 percent, that additional injuries would develop in the future as a result of the injuries he caused. Id., 381. The court permitted recovery on that future risk of harm even though the plaintiff did not demonstrate that it was more likely than not that such harm would occur. The court held that “in a tort action, a plaintiff who has established a breach of duty that was a substantial factor in causing a present injury which has resulted in an increased risk of future harm is entitled to compensation to the extent that the future injury is likely to occur.” Id., 397-98. “The probability percentage for the occurrence of a particular harm, the risk of which has been created by the tortfeasor, can be applied to the damages that would be justified if that harm should be realized.” Id., 397.

The court reasoned that this rule’s application warranted recovery in Petriello because the plaintiff already had proven that the increased risk of the injury’s occurrence, of between 8 to 16 percent, was more likely than not caused by the defendant’s negligence. The court stated that, this being the case, “there [was] no legitimate reason why [the plaintiff] should not receive present compensation based upon the likelihood of the risk becoming a reality.” Id., 396. The court further stated that the plaintiff “should not be burdened with proving that the occurrence of a future event is more likely than not, when it is a present risk, rather than a future event for which she claims damages. . . . [I]t was fairer to instruct the jury to compensate the plaintiff for the increased risk of a bowel obstruction based upon the likelihood of its occurrence rather than to ignore that risk entirely. The medical evidence in this case concerning the probability of such a future consequence provided a sufficient basis for estimating that likelihood and compensating the plaintiff for it.” Id.

Petriello holds that in a case involving damages for a risk of future harm, a plaintiff is entitled to recover for any increased risk of future harm, provided that such plaintiff has proven that it more likely than not that such increased risk exists. Petriello overruled earlier Connecticut cases that had permitted a plaintiff to recover for a risk of future harm only if he or she had proven that there was at least a 51 percent chance that a future injury would result. Id., 398 n.11. In such cases, provided that the risk that a future injury would manifest itself was at least more probable than not, the law permitted a plaintiff to recover full compensation for such injury, even though it had not yet occurred. See id.

A case involving a risk of future harm, however, is entirely distinguishable from a case involving a lost chance of survival. There is no reason to interpret Petriello’s holding to in any way cast doubt on the law with regard to lost chance of survival cases, which requires that a defendant’s negligent acts more likely than not affected the outcome. As previously discussed, this court has required plaintiffs to prove their claims under a traditional standard of causation. If a plaintiff cannot prove that a victim probably would have survived absent the negligent acts complained of, he or she cannot, of course, claim that the negligent acts more likely than not caused the victim’s death. Borkowski v. Sacheti, supra, 43 Conn. App. 301. The plaintiffs clearly were required to prove a causal link between the child’s death and the acts of negligence of which they complained. The plaintiffs apparently seek for us to abandon our requirement that a plaintiff prove that a better than even chance of survival existed in favor of a requirement, which permits recovery even where a lesser chance of survival is lost. The plaintiffs’ argument, however, is unpersuasive and misses the point of the trial court’s holding. The problem with the plaintiffs’ case lies in how they attempted to substantiate their claimed causal link. As we have explained, Sommer’s testimony does not afford a basis on which a fact finder could find that any chance of survival existed.

We do not read Petriello to in any way relax a plaintiffs burden to prove a causal link between negligent acts and the harm for which he or she seeks compensation. Petriello permitted a plaintiff to recover for a measurable risk, albeit a risk of between 8 to 16 percent, that a future injury would result. The plaintiff in Petriello still was required to prove that such a present risk existed by a preponderance of the evidence. Whether the plaintiff in Petriello had established, by a preponderance of the evidence, that such future risk existed was not at issue. The plaintiff, however, was permitted to recover for the risk only after having proven that the breach of duty was a substantial factor in causing that risk. Petriello v. Kalman, supra, 215 Conn. 397-98.

II

The plaintiffs, Ronda Drew, individually, and Michael Anzalone, next claim that the court improperly granted summary judgment in the defendants’ favor with respect to their claims sounding in bystander emotional distress. We disagree.

The resolution of the plaintiffs’ claim warrants little discussion. The plaintiffs concede that the bystander emotional distress claims are derivative of the claims sounding in medical malpractice. We agree. The claims are “inextricably attached” because the judgments with respect to the malpractice counts bar recoveiy with regard to those counts. See Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 312, 524 A.2d 641 (1987). The plaintiffs’ claims are based on a finding that the defendants’ negligence caused the child’s death and argue that we should reverse the judgment on those claims after we conclude that they have made such a showing. We held in part I that the court properly rendered judgment in the defendants’ favor with regard to the malpractice claims because the plaintiffs had not made such a factual showing. Accordingly, we affirm the court’s judgment with respect to the remaining claims.

The judgment is affirmed.

In this opinion WEST, J., concurred.

DUPONT, J.,

dissenting. I respectfully dissent. This case presents the issue of whether the plaintiffs’ statistical probability evidence alone, in a medical malpractice action, based on the doctrine of a lost chance of survival, would prevent the defendants from obtaining a summary judgment. I do not agree that summary judgment should have been rendered because I think that the statistical evidence offered by the plaintiffs in this case sufficed for denying the motion. The plaintiffs submitted evidence of the deposition of a medical expert that there was a statistical probability that up to 75 percent of all young children with the same disease as the plaintiffs’ daughter would survive, given appropriate medical care.

There is no dispute that in Connecticut, in a loss of chance case, a plaintiff must prove entitlement to recovery by a traditional approach, namely, proof that the defendants’ negligence, by a preponderance of the evidence, proximately caused the injuiy, that is, the loss of a chance to survive. The unanswered question in Connecticut, however, is whether, in some instances, statistical evidence from a medical expert, not particular to the patient, is sufficient to prove that it is more likely than not that a patient was deprived of a chance to survive. I would, in this case, answer the question by concluding that the statistical evidence alone was sufficient.

Loss of a chance to survive cases typically arise when a patient, already suffering from a preexisting, known or unknown condition, which places the patient at risk of death, alleges that the negligence of a defendant decreased that patient’s chance to survive. In this case, the preexisting condition was not known until after the sixteen month old child of the plaintiffs died and an autopsy was performed. When a patient is veiy young, with no medical history of the disease or treatment of it, or no medical history at all, I would allow proof by a statistical analysis only. Without the use of statistical evidence, a prior blank medical slate would mean that such children could never be proven to have any probability of survival.

The quantum aspects of a loss of a chance to survive can never be precisely known. “Chance” connotes uncertainty and the unknown. The concept of the cause of action for lost chance or loss of chance arises out of a lack of information as to the future or as to what might have been, absent negligence, and can only be an estimate based on hypotheticais. The many courts, in addition to Connecticut, that recognize such actions; see, e.g., Hicks v. United States, 368 F.2d 626 (4th Cir. 1966); Thompson v. Sun City Community Hospital, Inc., 141 Ariz. 597, 688 P.2d 605 (1984); Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984); Perez v. Las Vegas Medical Center, 107 Nev. 1, 805 P.2d 589 (1991); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Ehlinger v. Sipes, 155 Wis. 2d 1, 454 N.W.2d 754 (1990); see also 2 Restatement (Second), Torts § 323 (1965); Restatement, Torts § 26 (Tentative Draft No. 2); and the many law review articles written on the cause of action; see, e.g., J. King, Jr., “Causation, Valuation, and Chance in Personal Injury Torts Involving Preexiting Conditions and Future Consequences,” 90 Yale L.J. 1353 (1981); D. Fischer, “Tort Recovery for Loss of a Chance,” 36 Wake Forest L. Rev. 605 (2001); all recognize that the destruction of a chance to survive in medical malpractice cases merits compensation, if causation is proven by the particular standard of proof required by the decisional jurisdiction. All of the authorities are aware that the more that is known statistically and otherwise about the particular patient, the better able medical experts can identify with some degree of accuracy who would survive and who would not if the negligent act alleged had not happened. But no matter how much information we have, it cannot ever be known with absolute certainty which patients would live and which would die.

Because the probability of survival in this case could never be known without statistics, the loss of a chance doctrine could never be utilized to effect a recovery because no individualized information was available due to the age of the child and the fact that the disease had not previously been diagnosed. “It should not matter whether the victim’s prospects are assessed by individualized or statistical evidence, or both.” J. King, Jr., “ ‘Reduction of Likelihood’ Reformulation and Other Retrofitting of the Loss-of-a-Chance Doctrine,” 28 U. Mem. L. Rev. 492, 542 (1998).

In some cases, such as this one, the patient is very young, and the preexisting condition is not known until after death and after an autopsy has been performed. The only existing evidence in such cases is statistical. Children of parents who have not had pediatric care from birth to the date of the alleged injury may have no prior medical records and would have no way of ever proving the probability of survival without the use of statistics. In cases where a small child has a nonexistent medical slate, nothing can be known except the circumstances of the death and an autopsy report, unless statistics are used.

We use statistics in other types of cases. Statistical analyses, namely, actuarial tables for life expectancy, unrelated to a particular person, are used in determining compensation for the destruction of earning capacity in death actions. “With respect to awards for permanent injuries, actuarial tables of average life expectancy are commonly used to assist the trier in measuring the loss a plaintiff is likely to sustain from the future effects of an injury. Such statistical evidence does, of course, satisfy the more likely than not standard as to the duration of a permanent injury.” Petriello v. Kalaman, 215 Conn. 377, 397, 576 A.2d 474 (1990); see also State v. Villafane, 164 Conn. 637, 647, 325 A.2d 251 (1973) (statistics in context of grand jury selection). Petriello is cited by the leading commentator on lost chance, Professor Joseph King, Jr., as applying “the loss of a chance doctrine in the future consequences situation.” J. King, Jr., supra, 28 U. Mem. L. Rev. 510 n.64. If statistics can be used to evaluate the future effects of an injury to gauge the length of time over which the effects may last, without regard to the particular life expectancy of a claimant, which can never be known with certainty, I think a statistical analysis can be used in some lost chance of survival cases.

“The nature of the evidence should not matter except to aid the trier of fact in estimating the likelihood that the desired outcome would have been achieved but for the plaintiffs negligence.” Id., 492. In many cases, a determination of the probable likelihood may be an amalgam of all of the evidence, both personalized and statistical. In other cases, that likelihood may be known only through the use of statistics or averages.

The loss of a chance in this case is based on a hypothetical event, namely, the survival of a child if she had been transferred to a pediatric intensive care or tertiary care center several hours before she experienced cardiopulmonary arrest. I would have denied the defendants’ motions for summary judgment because the statistical evidence alone, in my view, was sufficient to establish that this young child had a chance of survival of up to 75 percent. Viewing this statistical evidence, the child’s age and the information on her autopsy report in the light most favorable to the plaintiffs, as must be done in determining the defendants’ motion for summary judgment, I would not have granted the motion. I think that a jury, as fact finders, should have been allowed to consider the plaintiffs’ claim of the lost chance of survival of their daughter.

       That traditional approach for proving causation requires that a plaintiff prove that with proper medical treatment, the patient probably would have avoided the injury, harm, or condition complained of. To put that approach in some context, a brief discussion of alternative approaches to proving causation in lost chance cases is provided as follows.
      The “relaxed causation” or “substantial chance” approach requires a plaintiff to prove that “a substantial or significant chance of survival or better recovery was lost. If plaintiff meets this initial threshold, the causation issue is submitted to the jury, using the tradition proximate cause standard to ascertain whether, in fact, the alleged malpractice resulted in the loss of a substantial or significant chance. Thus, the jury must find by a preponderance of the evidence that the alleged negligence was the proximate cause of the lost chance, but the lost chance itself need only be a substantial or significant chance, for a better result, absent any malpractice, rather than a greater than 50 percent chance of a better result.” (Internal quotation marks omitted.) Borkowski v. Sacheti, supra, 43 Conn. App. 302-303.
      Under the “proportional” approach to causation in such cases, the loss of chance is viewed and redressed “in its own right.” (Internal quotation marks omitted.) Id., 305. “Instead of attempting to determine whether the physical harm was caused by negligence, a court could examine the extent of the victim’s lost chances for cure or improvement and grant a recovery that mirrors the extent of those chances. . . . The relevant inquiry would be whether the defendant ‘probably’ caused a reduction in the victim’s chances. If causation were found, the court would provide compensation for the lost chance in direct proportion to the extent of the lost chance.” (Internal quotation marks omitted.) Id., 304.

       The record contains only the portions of Sommer’s testimony that the parties appended to their memoranda. The plaintiffs did not provide the trial court with Sommer’s deposition testimony in its entirety.

       Despite testifying that he knew of no way to “prognosticate” as to whether the child had a belter than average chance of survival, Sommer also testified that “[pjatients who are shown on biopsy to have a lymphocytic infiltrate . . . will have a much better prognosis as a group because typically, especially in children who are young, a large percentage of those patients recover and many of them recover completely.” Sommer did not testify, however, that such a condition existed with regard to the child and did not base his opinion on such a condition. Nonetheless, in their reply brief to this court, the plaintiffs represent that Steve Evans-Downing, a pathologist, indicated in deposition testimony that on the basis of autopsy results, the child had lymphocytic infiltration in her heart tissue. The plaintiffs argue that the child, therefore, did in fact have a “very favorable” diagnosis. The plaintiffs presumably encourage us to share that view of the evidence. The plaintiffs attached, as exhibit G to their reply brief, a single page containing a portion of Evans-Downing’s deposition testimony.
      The plaintiffs did not make that argument before the trial court, either in their written memoranda in opposition to the defendants’ motions or during oral argument before the trial court. On the basis of our review of the record, the plaintiffs did not even submit Evans-Downing’s deposition testimony, in any part, to the trial court for its review. Furthermore, the plaintiffs have raised that issue concerning that evidence, which was not before the trial court, for the first time in their reply brief. Even were we to find merit in the plaintffs’ argument, which we do not, we would nonetheless decline to entertain it for those reasons.

       Sommer attested in Ms affidavit, addressed to the plaintiffs’ attorney, in pertinent part as follows:
      “You have told me that a question has come up in your case . . . about whether Cassidy would have had ‘a better than even chance to survive’ from her Lympocytic myocarditis condition if she had received appropriate supportive care measures in a closely momtored setting .... M my opinion, she would have had a better than even chance, considering that 2/3rds to as many as 80 percent of the children with Cassidy’s kind of condition who receive such appropriate supportive care do survive their illness.
      “As I said in my deposition, I cannot state whether she would have survived, or tell you that her personal chance of survival with appropriate treatment would have been ‘x’ percent, but I do feel strongly that her chances of survival with appropriate supportive care certainly would have been much higher than they were with her receiving none of such measures (as unfortunately happened), and that they would have been ‘better than even.’
      “It also can be stated with reasonable medical certainty that any child in the same condition as Cassidy when she was at the Backus Hospital in July, 1997, who received the same level of treatment as Cassidy did, would have had a ‘better than even chance’ of succumbing to her illness.”

         The court, in large part, followed the reasoning related to the use of statistical evidence in lost chance cases that the Supreme Court of Missouri employed in Wollen v. DePaul Heath Center, 828 S.W.2d 681, 685-86 (Mo. 1992). The Missouri Supreme Court, in regard to the plaintiff’s use of statistical evidence concerning the decedent’s chance of survival, stated: “In the posture of this case, the Court assumes that the plaintiff can prove by a preponderance of the evidence that there was a statistical chance of survival. Regardless of the exact percent of individuals in the circumstances of the decedent, as long as there is a significant chance of either survival or death, the statistic cannot tell whether the decedent would have survived if properly diagnosed. A statistic of this kind typically predicts that, out of a random sample of a large number of people in decedent’s circumstances — if properly diagnosed and treated — Y percent will live and Z percent will die. A specific individual, however, could be in either group. A jury could speculate as to which group a decedent would fall, but the statistical evidence — without more — does not give a jury a basis to believe that the decedent belongs to either the group that lives, or the group that dies. Therefore, regardless of whether the lost chance of survival is greater than or less than 50%, it is impossible to prove that decedent’s death resulted from the failure to properly diagnose and treat.” (Emphasis in original.) Id.

       The dissent suggests that the issue before us is “whether the plaintiffs statistical probability evidence alone, in a medical malpractice action, based on the doctrine of a lost chance of survival, would prevent the defendants from obtaining a summary judgment.” The dissent then concludes that the statistical evidence that Sommer discussed in his testimony, specifically, that up to 75 percent of all young children with the same disease as the child at issue would survive if given appropriate medical care, warranted a denial of the defendants’ motions for summary judgment. The dissent recognizes, as well, that Sommer opined equivocally as to the child’s chance of survival. Although Sommer may have been equivocal in that regard, he nonetheless unequivocally testified as to the flawed basis of any opinion concerning a specific chance of survival that he rendered. That is, he repeatedly testified that he had no way of assessing a specific chance of survival and that he was unable to rely on general statistical data in an attempt to assess such chance of survival for this patient. We, like the trial court, must evaluate the whole of Sommer’s testimony to gauge its competence, to determine if it was based on reasonable medical probability. We respectfully conclude that because Sommer himself characterized the use of general statistical evidence to assess this particular child’s chance of survival as “misleading” and because Sommer testified that it was “impossible to predict” the child’s chance of survival, a finder of fact would lack any basis on which to somehow “apply” general statistical data or any other type of evidence to the child and conclude that she would have had a better than average chance of survival. Sommer himself did so and then testified that this application was not scientifically competent. If Sommer, on the basis of general statistical evidence, had rendered an expert opinion as to the child’s chance of survival and had testified that a scientific basis existed for him to render such opinion, the issue before us would concern the use of statistical probability evidence alone to assess lost chance of survival. That he did not do. Consequently, we need look no further than Sommer’s own testimony concerning the scientific basis of his opinion to gauge its merit.

       “While experts may testify to general scientific facts or doctrines which are pertinent to clarify the facts in issue, they cannot testify either as to general theories which have only a remote and conjectural application to the facts of the case, or as to general conditions or occurrences speculatively connected with the issues at bar.” 31 Am. Jur. 2d, Expert and Opinion Evidence § 67 (2002).

       The plaintiffs also argue that Petriello implicitly recognizes the propriety of using general statistical evidence to prove a patient’s chance of survival; see Petriello v. Kalman, supra, 215 Conn. 397; and take issue with the trial court’s rationale in granting the defendants’ motions for summary judgment. As stated previously, we need not address the specific issue concerning statistical evidence in proving that a chance of survival existed because that issue is not before us. We base our holding on the fact that Sommer explicitly stated that the statistics he relied on did not relate to this specific patient and that he found it impossible to assess the child’s chance of survival.

       Having resolved that claim as we did, we, like the trial court, have no occasion on which to opine as to whether a claim for bystander emotional distress based on medical malpractice is legally cognizable.

       The majority has quoted the relevant deposition testimony and affidavit statements of Robert J. Sommer, aphysician specializing in pediatric cardiology, which need not be repeated. I note, however, that some of the statements are equivocal as to whether the physician was opining about the relationship between the plaintiffs’ child and the statistics or as to whether he could form no opinion as to the relationship between the statistics and the particular child’s chance to survive had the alleged negligence not occurred.

       A leading Connecticut case, Borkowski v. Sacheti, 43 Conn. App. 294, 299-315, 682 A.2d 1095, cert. denied, 239 Conn. 945, 686 A.2d 120 (1996), provides an excellent discussion of the differing standards of proof adopted by the states for the sufficiency of evidence to prove such claims. See also Wallace v. St. Francis Hospital & Medical Center, 44 Conn. App. 257, 688 A.2d 352 (1997); LaBieniec v. Baker, 11 Conn. App. 199, 526 A.2d 1341 (1987). Borkowski relied heavily on Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St. 2d 242, 272 N.E.2d 97 (1971), as did LaBieniec. The Ohio Supreme Court since has overruled Cooper. Roberts v. Ohio Permanente Medical Group, Inc., 76 Ohio St. 3d 483, 488, 668 N.E.2d 480 (1996). The Connecticut rule and the former Ohio rule follow the traditional “all-or-nothing rule,” which “went largely unchallenged in United States personal injury cases until about fifteen years ago. Since then, however, there has been a dramatic shift in the law, especially in the setting of medical malpractice.” J. King, Jr., “ ‘Reduction of Likelihood’ Reformulation and Oilier Retrofitting of the Loss-of-a-Chance Doctrine,” 28 U. Mem. L. Rev. 492, 502 (1998).


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    EDWARD A. VISCONTI, JR., ET AL. v. PEPPER PARTNERS LIMITED PARTNERSHIP ET AL.
    (AC 23329)
    Laveiy, C. J., and Dranginis and Peters, Js.

      Argued May 1
    officially released July 1, 2003

      Jonathan A. Kocienda, with whom, on the brief, was Elizabeth Fairbanks Flynn, for the appellants (plaintiffs).

      David P. Friedman, with whom was Marcy Tench Stovall, for the appellees (defendants).
   Opinion

PETERS, J.

When there is a sale of real property that may be environmentally contaminated, the Hazardous Waste Transfer Act (Transfer Act), General Statutes § 22a-134 et seq., requires a transferor either to provide to a transferee a negative declaration to indicate that the property poses no environmental threat or to certify to the department of environmental protection that remediation measures will be undertaken. In this case, the contract for the sale of the property provided that the transferee would take the risk of environmental contamination and bear the cost of whatever remediation might be necessary. The principal issue is whether these express provisions should be set aside because they resulted from fraudulent misrepresentation or nondisclosure. Concluding that the plaintiff transferee had failed to allege sufficient facts to demonstrate fraudulent misconduct, the trial court granted a motion for summary judgment filed by the defendant transferors. We affirm the judgment of the trial court.

The plaintiff, Edward A. Visconti, Jr., filed a twelve count complaint seeking damages and injunctive relief from the defendants, Pepper Partners Limited Partnership (Pepper Partners), Ernest A. Wiehl, Jr. (Ernest Wiehl), Richard V. Wiehl and Consumer Petroleum of Connecticut, Inc. Only four of these counts are before us on this appeal. These counts allege fraud (count one), fraudulent nondisclosure (count two), negligent misrepresentation (count seven) and breach of duty to remediate (count eleven). The plaintiff claimed that he was entitled to monetary and injunctive relief and to a declaratory judgment requiring the defendants to remediate all environmental contamination on the property and to reimburse him for the reasonable costs that he had incurred for the containment, removal or mitigation of such environmental contamination.

The defendants denied the material allegations in the plaintiffs complaint and filed a number of special defenses. The most significant of these special defenses asserted that the plaintiffs claims were barred by the terms of the contract of sale of the property and by applicable statutes of limitation. The defendants also filed a counterclaim based on an indemnity provision in the contract of sale.

The defendants moved for summary judgment on the complaint, but not on the counterclaim. Despite the plaintiffs objection, the court granted the motion for summary judgment.

The record and the court’s memorandum of decision set out the relevant undisputed facts. On February 9, 1996, the plaintiff bought property located at 199-211 Naugatuck Avenue, Milford, from the defendant Pepper Partners by quitclaim deed. At that time, the property was vacant but, as the plaintiff knew, a gasoline station and an automobile repair shop previously had been located there. The plaintiff had worked at the gasoline station at an earlier time.

In 1988, as a result of an order of abatement issued by the city of Milford, Ernest Wiehl had three underground gasoline tanks and one waste oil storage tank removed from the property. At the same time, he had the contaminated soil in the vicinity of the tanks removed and replaced by clean fill.

In 1989, Ernest Wiehl quitclaimed his ownership in the property to Pepper Partners. The property lay idle until the plaintiff purchased it in 1996.

In 1995, observing that the property was for sale, the plaintiff visited the site in the company of a real estate agent representing Ernest Wiehl. The agent told the plaintiff, and Ernest Wiehl subsequently confirmed, that the underground tanks had been removed and that the authorities were satisfied. The plaintiff observed the difference in the soil where the tanks had been removed and new fill had been brought in.

In his deposition, the plaintiff acknowledged that, after the site visit, he assumed that the soil around the tank area was contaminated. None of the defendants ever told him that the soil was environmentally clean. None of the defendants ever told him not to have the soil tested to discover whether it was contaminated.

Later in 1995, the plaintiff and Pepper Partners entered into negotiations for the conveyance of the property to the plaintiff. Throughout, the plaintiff was represented by counsel of his choice.

Under the terms of the contract of sale that the plaintiff executed in January, 1996, the plaintiff agreed to purchase the property for a down payment of $5000 and to execute a mortgage note to Pepper Partners for $200,000. At the closing on February 9,1996, the plaintiff made the down payment and executed the mortgage and the note. He has not made any further payments since that time.

The contract of sale specifically addressed the environmental concerns raised by the hazardous waste generated by the use of the property as a gas station and an automobile repair shop in the 1980s. The contract provided that the plaintiff, at his own expense, would “make such inspections of the Premises (including without limitation a Phase I environmental site assessment)” as the plaintiff deemed appropriate. The contract advised the plaintiff that the property might fall within the definition of a hazardous waste “establishment” that would require environmental remediation. It placed on the plaintiff the burden of executing the requisite environmental certifications, of paying the accompanying filing fees and of taking responsibility for any needed environmental testing and cleanup.

Prior to the closing, Pepper Partners reminded the plaintiff of his environmental obligations. Pepper Partners indicated its willingness to postpone the closing until the plaintiff had undertaken an environmental study of the property and to release the plaintiff from the contract of sale in the event that the study dissuaded the plaintiff from proceeding further. Pepper Partners insisted, however, that it would not convey the property without the plaintiffs signing and filing of the required Transfer Act forms. To this end, Pepper Partners provided the necessary forms to the plaintiff, stating therein the environmental history of the property’s prior use as an automobile repair shop. In the contract of sale, the plaintiff acknowledged that Pepper Partners had made no representations about the environmental condition of the property except to inform the plaintiff that the property might be an environmental “establishment” because of its prior use as a service station.

The plaintiff declined to perform a preclosing environmental examination of the property and signed and filed the Transfer Act forms, without additions or deletions, as they had been prepared by Pepper Partners. On February 5, 1996, the plaintiff advised Pepper Partners that he was anxious to close the sale as early as possible. The closing took place on February 9, 1996.

The trial court granted the motion of the defendants for summary judgment on ah counts of the plaintiffs complaint. It concluded, in relevant part, that the plaintiff, in count one, had not alleged material facts to sustain his claim of fraud because, even if Ernest Wiehl had been untruthful in representing that the 1988 cleanup had satisfied the relevant authorities, the plaintiff had not relied on that representation to estabhsh that the property was not contaminated. It further held that count two, alleging fraudulent nondisclosure, was untenable in light of the provisions in the contract of sale that assigned the risk of environmental hazards to the plaintiff. It determined that the plaintiff could not succeed in count seven, alleging negligent misrepresentation, for the same reason that it could not succeed on the fraud count. Finally, the court held that the statute of limitations barred the plaintiffs statutory claim in count eleven to recover for environmental damage. In this appeal, the plaintiff challenges the validity of each of these conclusions.

We review the granting of a motion for summary judgment according to a well-established standard. “Pursuant to Practice Book § 17-49, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Such questions of law are subject to plenary appellate review. ... In deciding whether the trial court properly determined that there was no genuine issue of material fact, we review the evidence in the light most favorable to the nonmoving party.” (Citation omitted; internal quotation marks omitted.) Faigel v. Fairfield University, 75 Conn. App. 37, 39-40, 815 A.2d 140 (2003); see also Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002).

I

NEGLIGENT OR FRAUDULENT MISREPRESENTATION

The plaintiffs claims for negligent misrepresentation (count seven) and fraud (count one) focus on the statement made to the plaintiff by Ernest Wiehl, which informed the plaintiff that, after the 1988 removal of underground tanks from the property that the plaintiff subsequently purchased, “the authorities were satisfied.” The trial court held that this statement “might equal a false representation.”

The plaintiff emphasizes the importance of a false representation to a claim of negligent misrepresentation. Proving a false representation is, however, only one part of a claim of actionable misrepresentation. To prevail, the plaintiff also was required to show that he reasonably relied on that misrepresentation. “One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” (Emphasis added; internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 575, 657 A.2d 212 (1995); D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 218, 520 A.2d 217 (1987); Giametti v. Inspections, Inc., 76 Conn. App. 352, 363-64, 842 A.2d 1 (2003); 3 Restatement (Second) Torts § 552, pp. 126-27 (1977).

The requirement of reliance applies also to an action for fraud. “The essential elements of an action in common law fraud . . . are that: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury.” (Emphasis added; internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 777, 802 A.2d 44 (2002), quoting Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 539, 661 A.2d 530 (1995); see also Citino v. Redevelopment Agency, 51 Conn. App. 262, 275, 721 A.2d 1197 (1998).

To prevail, therefore, the plaintiff must have alleged sufficient facts to demonstrate his reliance on the statement made by Ernest Wiehl. He has failed to do so. In his deposition, he acknowledged his independent knowledge of continued soil contamination, derived from his observation of differences in the color of the soil at the site of the removal of the storage tanks. In the contract of sale, he acknowledged that the property might be an environmental “establishment” and undertook to investigate and disclose the environmental condition of the property. In the mortgage, he again acknowledged that he had assumed the responsibility for remediating any environmental hazards that the property might contain. In light of these specific assertions of assumption of risk, the trial court properly found no probative value in the plaintiffs bare statements that he had relied on Wiehl’s representation.

II

FRAUDULENT NONDISCLOSURE

The plaintiffs claim of fraudulent nondisclosure, in count two of his complaint, arises out of the fact that, in 1989, when the property was transferred to Pepper Partners, the defendants did not comply with the reporting provisions of the Transfer Act. That failure came to light on May 22, 2000, when the department of environmental protection issued a notice of violation to Ernest Wiehl. The notice informed him that “contamination existed on this parcel prior to the transfer” because of the former use of the property as an auto body repair shop.

The plaintiff maintains that the defendants’ failure to comply with the Transfer Act in 1989 was, in effect, an assertion that the property contained nothing that would give rise to any environmental concern. Had the defendants made the proper filings, they would have had to undertake the required environmental cleanup. Instead, he argues, having failed to comply with the Transfer Act, they fraudulently transferred contaminated property to him.

The plaintiff does not dispute the fact that, in the contract of sale of the property to him, he expressly undertook to take whatever steps for remediation the property might require. He recognizes that in Holly Hill Holdings v. Lowman, 226 Conn. 748, 628 A.2d 1298 (1993), our Supreme Court held that contractual provisions may preclude “a private right of action . . . based on a transferor’s noncompliance with pretransfer disclosure regulations.” Id., 750. In that case, as in this one, the transferee “had actual knowledge of the existing underground gasoline storage tanks . . . that were associated with the service station.” Id., 751. Further, as in this case, the transferor had not given the transferee or the department of environmental protection the written notification contemplated by the applicable environmental statute. Id.; see also Regs., Conn. State Agencies § 22a-449 (d)-1 (d) and (f) (1).

The plaintiff would have us distinguish this case from Holly Hill Holdings on the ground that he was unaware of the environmental hazards posed by the property. That argument is untenable. His deposition discloses that he knew the soil near the removed tanks to be contaminated even after removal of the tanks themselves.

The unassailable fact is that, in the contract of sale, the plaintiff assumed the risk that the property might have environmental problems when he purchased it. He had the opportunity to investigate possible environmental hazards before the transfer of the property but chose not to make the relevant inquiries. We agree with the trial court that, under these circumstances, the defendants had no duty to make any further disclosures to the plaintiff. See Kenney v. Healey Ford-Lincoln-Mercury, Inc., 53 Conn. App. 327, 332-33, 730 A.2d 115 (1999); 3 Restatement (Second), supra, § 551 (2) (e), comment (j), p. 123.

Ill

VIOLATION OF GENERAL STATUTES § 22a-16

In his final claim before this court, the plaintiff claims that he is entitled to a remedy under General Statutes § 22a-16, which authorizes “any person” to bring an action “for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . . .” Tracking the language of the statute, the plaintiff, in count eleven of his complaint, alleged that the defendants’ actions in causing the environmental contamination of his property “unreasonably polluted, impaired, or destroyed the public trust in the water and/or natural resources of the state of Connecticut.”

In one of their special defenses, the defendants asserted that this claim was barred by the statute of limitations contained in General Statutes § 52-577. That statute requires an action “founded upon a tort” to be brought “within three years from the date of the act or omission complained of.” The plaintiff does not dispute the applicability of this statute in this case.

The trial court agreed with the defendants that the plaintiffs statutoiy claim was time barred. In response to the plaintiffs motion for reconsideration, it stated that “[c]ount [e]leven is subject to § 52-577, an ‘occurrence statute.’ The property was vacant and unused since 1989.” The court declined to accept the plaintiffs argument that the statute did not begin to run until the sale of the property to him.

The plaintiffs argument on appeal focuses on the fact that the defendants continued to own the polluted property after it had been vacated. According to the plaintiff, the defendants had a continuing duty to remediate the pollution caused by the former use of the property as a gasoline station and an automobile repair shop. The department of environmental protection apparently takes the same view. In May, 2000, the department notified Pepper Partners that the partnership should have complied with the requirements of the Transfer Act in 1989, when it acquired the property from Ernest Wiehl. The notice advised Pepper Partners to file the requisite environmental condition assessment form and a property transfer program — form III within thirty days.

According to the plaintiff, Pepper Partners’ failure to comply with their continuing duty to remediate the environmental pollution on their property was a continuing breach of duty that was actionable until his purchase of the property in 1998. This argument raises a question of first impression.

The defendants argue, as the trial court held, that the plaintiffs analysis is flawed because, under § 52-577, the clock starts running on the date of the act or omission of which the plaintiff complains. Fichera v. Mine Hill Corp., 207 Conn. 204, 212, 541 A.2d 472 (1988); S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., 32 Conn. App. 786, 790-91, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). The plaintiff has not challenged that proposition.

The question that must yet be answered, however, is whether a failure to remediate pollution of which the defendants were aware is an “omission” that continues to be actionable as long as it continues to exist. The defendants maintain that § 22a-16 authorizes the plaintiffs pursuit of an environmental cause of action for negligent contamination only if that contamination was caused by their treatment, storage or disposal of hazardous waste, waste oil or petroleum or chemical liquids. As the defendants note, the plaintiffs complaint is so phrased. Once the property became vacant, the defendants did not cause further pollution. In other words, the plaintiffs failure to charge them with an “omission” of their continuous duty to remediate the pollution and his concomitant failure to invoke an argument of omission in response to the motion for summary judgment now bars him from any recovery under § 22a-16.

This procedural argument, standing alone, might not be persuasive. It is buttressed, however, by the text of § 22a-16.

The plaintiff cites Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 627 A.2d 1296 (1993), and Starr v. Commissioner of Environmental Protection, 236 Conn. 722, 675 A.2d 430 (1996). Those cases involved the question whether an innocent landowner bore liability for “maintaining” preexisting environmental contamination by failing to undertake remedial measures. Until the legislature created an innocent landowner defense, the Supreme Court construed the applicable statute, General Statutes § 22a-432, to impose continuing liability for maintaining a condition that reasonably could be expected to create a source of pollution. Starr v. Commissioner of Environmental Protection, supra, 226 Conn. 395.

The Starr cases are, however, distinguishable because the governing statute, § 22a-432, expressly imposed liability on a property owner who maintained a contaminated condition on his property. Section 22a-16 has no comparable language. We decline to engraft language on § 22a-16 that it does not contain. See Spears v. Garcia, 263 Conn. 22, 32, 818 A.2d 37 (2003); Coalition to Save Horsebarn Hill v. Freedom of Information Commission, 73 Conn. App. 89, 97, 806 A.2d 1130 (2002), cert. denied, 262 Conn. 932, 815 A.2d 132 (2003).

We conclude, therefore, that the trial court properly granted the defendants’ motion for summary judgment with respect to the plaintiffs statutory claim under § 22a-16. It might be troublesome that the statute of limitations had run on this claim even before the plaintiff purchased the property if the plaintiff had not unequivocally assumed all environmental risks by the terms of the contract of sale to which he subscribed.

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint lists the following as additional plaintiffs: Edward A. Visconti, Jr., doing business as E. A. Visconti and Sons, otherwise known as Visconti and Sons; Surrogate Wheels of Milford, Inc.; and Auto Specialists of Milford, LLC. Because these additional plaintiffs apparently have raised no separate claims of wrongdoing, we will refer to the named plaintiff, Edward A. Visconti, Jr., as the plaintiff.

       This case is one of three related cases. The others are a foreclosure action brought by Pepper Partners against the plaintiff and a legal malpractice action brought by the plaintiff against his former attorney, Thomas B. Lynch.

       Ernest A. Wiehl, Jr., was the owner of 99 percent of Pepper Partners, with his wife holding the remaining 1 percent interest. Ernest Wiehl and his son, Richard V. Wiehl, owned Consumer Petroleum of Connecticut, Inc., which supplied petroleum products to tenants on the property from 1978 to 1988.

       The other counts alleged fraudulent prevention of inquiry (count three), conspiracy (count four), breach of covenant of good faith (count five), breach of contract (count six), negligence (count eight); negligence per se (count nine), and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (count twelve). Count twelve was not before the trial court, McWeeny, J., because it had earlier been stricken by the court, Curran, J.

       General Statutes § 22a-134 regulates the transfer of a hazardous waste establishment. Pursuant to § 22a-134 (3) (E), property that, after 1967, has been used as a vehicle repair shop or a vehicle painting shop, is an “establishment.”

       General Statutes § 22a-134a provides that two forms must be filed upon the transfer of an “establishment.” One is an environmental condition assessment form (ECAP), which describes the condition of the property at the time of the transfer, and the other is a property transfer program — form IB, which requires the party filing the ECAP to take responsibility for any environmental pollution of the property.

       In the environmental condition assessment form, the plaintiff, as the person filing the form, acknowledged that he had indicated no environmental assessment of the property. In the property transfer program — form HI, the plaintiff indicated that the form was being filed because “until approximately 1983, the property was used as an auto body shop.” He certified that he would investigate the property to determine whether it posed a threat to the environment and agreed to remediate any environmental hazard that he might discover.

       At several junctures, the plaintiff alleges that he is not bound by the contract and the forms that he signed because he was functionally illiterate. He acted throughout the negotiations on the advice of counsel of his choice. He has not claimed that the contract was unconscionable. The record makes it abundantly clear that the defendants did not pressure the plaintiff into signing the contract at any particular time. Under these circumstances, the plaintiffs consent to the terms of the sales contract cannot be impeached on the ground of illiteracy. See Goldberg v. Krayeske, 102 Conn. 137, 140-41, 128 A. 27 (1925).

       In a supplemental order, the court stated: “There is no evidence of misrepresentation.”

       Section 22a-449 (d)-l (d) oí the Regulations of Connecticut State Agencies provides in relevant part: “(1) By May 8, 1986, the owner or operator of each existing facility shall notify the commissioner and the office of the local fire marshal of the results of the life expectancy determination required by subsection (h).
      “(2) Within thirty days following completion of installation of a new facility an owner or operator shall notify the commissioner and the office of the local fire marshal of the results of the life expectancy determination required by subsection (h).
      “(3) The notification required by subdivisions (1) and (2) of this subsection shall include but not be limited to the following: facility location and capacity, date of installation, contents, type of facility, and type of monitoring systems, if any, results of life expectancy determinations, and any other information which the commissioner deems necessary.
      “(4) By May 8,1986, the owner or operator of an abandoned or temporarily out-of-service facility shall notify the commissioner of the location, type and capacity of such facility and the date it was abandoned or removed from service. . . .”
      Section 22a-449 (d)-l (f) (1) of the Regulations of Connecticut State Agencies provides: “No owner or operator shall transfer ownership, possession or control of any new or existing facility without full disclosure to the transferee of the status of the facility with respect to compliance with these regulations at least fifteen (15) days prior to the transfer. Such disclosure shall include an up-to-date copy of the information submitted to the commissioner pursuant to subsection (d).”

       General Statutes § 22a-16 provides in relevant part: “[A]ny person . . . or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business ... for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction provided no such action shall be maintained against the state for pollution of real property acquired by the state under subsection (e) of section 22a-133m, where the spill or discharge which caused the pollution occurred prior to the acquisition of the property by the state.”

         See footnote 6.