author: KATZ, J.

text:
    THOMAS J. WICHERS ET AL. v. WILLIE HATCH ET AL.
    (SC 16010)
    Borden, Norcott, Katz, Palmer, Callahan, Ronan and Wollenberg, Js.
    Argued December 8, 1999
    officially released February 15, 2000

      Linda L. Morkan, with whom was Erin K. O’Brien, for the appellants (defendants).

      JillH. O’Connor, with whom, on the brief, was Laura, A. Goldstein, for the appellees (plaintiffs).

      Steven D. Ecker filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Opinion

KATZ, J.

This case presents the issue of whether the trial court necessarily must set aside the verdict when, pursuant to General Statutes § 52-572h, the jury returns a verdict awarding the plaintiff economic damages but zero noneconomic damages. This case also affords us an opportunity to decide what, if anything, should remain of this court’s holding in Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930), that an award of greater than nominal damages equaling the exact amount of medical expenses and lost wages claimed, with no allowance for substantial noneconomic damages, was inadequate as a matter of law, in light of this court’s more recent decision in Childs v. Bainer, 235 Conn. 107, 121-22, 663 A.2d 398 (1995), which held that an award of economic damages need not be accompanied always by an award of noneconomic damages. When faced with the jury’s award of zero noneconomic damages, the trial court in this case, relying on Johnson, invoked a per se rule to grant the plaintiffs motion for an additur. We conclude that a jury verdict awarding economic but not noneconomic damages to a tort claimant is not improper as a matter of law, and we expressly overrule that portion of Johnson that held otherwise.

The record discloses the following relevant facts. On August 15, 1994, an automobile driven by the named defendant, Willie Hatch (defendant), struck the automobile driven by the named plaintiff, Thomas J. Wichers (plaintiff), causing damage to both vehicles. Following the accident, the plaintiff drove his car home for lunch and then returned to work that afternoon. The plaintiff did not go to the hospital and never consulted a physician. That night, the plaintiff consulted his chiropractor, who had been treating him since 1987. The parties stipulated before trial that the defendant was responsible for the collision, leaving for the jury the sole issue of what damages to award the plaintiff for the injuries that he allegedly had sustained.

At trial, the parties hotly contested the extent of the plaintiffs injuries. The plaintiff claimed that, as a result of the accident, he had suffered an acute cervical strain, a cervical subluxion, a 5 percent permanent impairment of the cervical spine, headaches, fatigue, physical impairment and depression. The plaintiff testified to an impaired range of motion in that he could not move his head completely to the left. His chiropractor, George Lentini, testified that the plaintiff, whom he had treated for four months as a result of the accident, suffered a 5 percent permanent impairment of his cervical spine. Lentini assessed this impairment rating based upon the plaintiffs claimed restricted range of motion.

Prior to the 1994 accident, the plaintiff had a neck impairment and, in fact, had been receiving treatment by Lentini as part of a monthly maintenance program since 1987. Prior to that, the plaintiff had received treatment from two other chiropractors. Additionally, since at least 1991, the plaintiff had been suffering from an arthritic condition in his neck, which had resulted in a reduced range of motion. He also suffered from a degenerative condition, known as spondylosis, which had exhibited its symptoms as early as 1993. Lentini testified that the plaintiffs restricted range of motion could have been caused by arthritis, spondylosis, normal wear and tear or aging.

The plaintiff had been involved in two other motor vehicle accidents, one in 1991 and another in 1993, both of which resulted in a neck injury. The 1993 accident required the plaintiff to undergo eight months of treatment with Lentini. Unfortunately, despite that treatment, the plaintiff failed to regain his pre-1993 range of motion.

At trial, the plaintiff argued that, although he had a preexisting condition, the defendant’s negligence exacerbated that condition. He claimed pain and suffering and sought compensation. With regard to economic damages, the plaintiff asked the jury to award him $3377 in damages, representing the total cost of medical expenses that he had incurred to the date of the trial. He also asked the jury to consider the fact that he would “probably continue maintenance treatment or wellness care for thirteen and one-half years” with his chiropractor. The plaintiff did not, however, introduce any evidence regarding the cost of that future treatment, nor did he suggest a specific dollar amount for this anticipated treatment.

The defendant argued that the plaintiffs condition resulted, not from the 1994 accident with the defendant, but rather, from the plaintiffs arthritis and spondylosis, both degenerative conditions. Therefore, according to the defendant, because the plaintiffs condition would have continued to deteriorate regardless of the accident, he had failed to demonstrate a causal connection between the accident and the injuries allegedly suffered.

The trial court instructed the jury that it first had to determine whether there was a causal relationship between the accident and the injuries claimed by the plaintiff and, if so, what amount to award as fair, just and reasonable damages. Specifically, the trial court instructed the jury: “If you find that the plaintiff complains about an injury which would have occurred even in the absence of the defendant’s conduct, then you must find that the defendant did not proximately cause that injury.” The trial court further instructed the jury that, if it chose to award damages, it could “give the plaintiff only such damages as were proven to be the proximate consequence of the defendant’s action which resulted in [the plaintiffs] claimed injuries.” Regarding noneconomic damages, the trial court instructed the jury that the plaintiff “[was] not entitled to compensation for any preexisting conditions themselves. So, if you find that any of the plaintiffs injuries or losses preexisted this accident, you cannot award compensation for those conditions.”

The jury returned a verdict of $3377 in economic damages and zero noneconomic damages. Thereafter, pursuant to General Statutes § 52-228b, the plaintiff filed a motion to have the verdict set aside and for the court to order an additur. The sole basis of the plaintiffs motion was that the verdict was inconsistent in that “if the juiy believed [he] was injured so as to require treatment and incur medical bills, it is inconsistent to find that these same injuries did not cause pain and suffering and a five (5%) percent permanent impairment to his cervical spine.” In his memorandum in support of his motion, the plaintiff cited Johnson v. Franklin, supra, 112 Conn. 228. The defendant objected, citing Childs v. Bainer, supra, 235 Conn. 107, as support for his position that it is permissible for a jury to return a plaintiffs verdict awarding economic damages without also awarding noneconomic damages. On June 27,1997, the trial court granted the plaintiffs motion and ordered the defendant to pay an additur of $7500 in noneconomic damages and further ordered that, if the defendant did not accept the additur, a new trial would be held limited to the issue of damages.

Thereafter, the defendant sought and obtained an articulation of the trial court’s decision. In its articulation, the trial court cited to the jury’s award of $3377 in economic damages, “the exact amount of his economic damages,” and concluded therefrom that the “jury had to find that the plaintiff was injured in this accident.” The trial court concluded that the “verdict was inconsistent and inadequate as a matter of law.”

The defendant did not accept the additur and appealed to the Appellate Court. Thereafter, pursuant to Practice Book § 65-2, he filed a motion to transfer the appeal to this court, which we granted. Subsequently thereto, the defendant filed a second motion for articulation to clarify whether the trial court had considered the failure of the jury to award future medical damages in its conclusion that the jury had awarded the plaintiff “the exact amount” of the plaintiffs claimed economic damages. The trial court responded to the defendant’s inquiry articulating that it had not considered the jury’s failure to award future medical costs. Rather, it had considered “only the fact that the jury had awarded the plaintiff the exact amount of his present economic damages to the penny, [and that] therefore, in awarding the plaintiff ‘zero’ noneconomic damages, the verdict was inconsistent and justified the court’s granting an additur in favor of the plaintiff.”

The defendant claims that the trial court improperly failed to exercise its discretion in deciding whether to grant the plaintiffs motion for an additur based upon its belief that Johnson mandated that result. Specifically, the defendant makes two arguments. First, he argues that the per se rule of Johnson should not have been invoked in this case because the jury, having failed to award the plaintiff the damages he sought for future medical expenses, had not awarded the plaintiff “the exact amount” of his claimed damages. Second, the defendant claims that, should this court determine that Johnson does indeed control the present case, it should be overruled because it is not fruitful to attempt to reconcile Johnson and Childs so that each may be applied in a workable manner.

We agree with the defendant that the departure in Childs from what was perceived to be the Johnson per se rule, has left trial judges in some confusion, and that to attempt to harmonize the decisions would require this court to establish an arbitrary demarcation of what percentage of a full economic damage recovery mandates an award of noneconomic damages. Any such attempt to engage in arbitrary line making is both unnecessary and unwise. We conclude that Johnson should be overruled explicitly, and that a case-specific standard should apply to the instance in which a party seeks to have a verdict set aside on the basis that it is legally inadequate.

Before we turn to the merits of the claim, we first address the proper standard for this court’s review. Generally, we review a decision of the trial court setting aside the verdict and ordering an additur to determine whether the trial court properly exercised its discretion. Childs v. Bainer, supra, 235 Conn. 113; Malmberg v. Lopez, 208 Conn. 675, 679, 546 A.2d 264 (1988). When, however, the trial court concludes, as a matter of law, that it is compelled to act in a particular fashion, plenary review is appropriate. Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992). In this case, we read the trial court’s articulations to support the defendant’s characterization that, based upon Johnson v. Franklin, supra, 112 Conn. 228, the trial court believed that, as a matter of law, the jury’s verdict was inconsistent. Therefore, we first must examine whether the trial court’s conclusion was “ legally and logically correct . . . Southeastern Connecticut Regional Resources Recovery Authority v. Dept. of Public Utility Control, 244 Conn. 280, 291, 709 A.2d 549 (1998).

In order to answer that question, we begin with a discussion of Johnson v. Franklin, supra, 112 Conn. 228. In Johnson, three plaintiffs, who were injured as a result of an automobile collision, commenced an action that resulted in a jury award for the exact amount of the economic damages alleged. No general or noneconomic damages were awarded, and the trial court, treating the award as so nominal as to be tantamount to a defendant’s verdict, denied the motion to set aside the verdict, concluding that the jury “ ‘may very reasonably have found’ ” that the plaintiffs did not deserve a greater recovery. Id., 229. In reversing the judgment, this court concluded that the damages were not nominal; id., 230; and that the trial court should have set aside the verdicts as a matter of law because, “if the plaintiffs were entitled to verdicts those rendered were manifestly inadequate . . . .” Id., 232. The court held that an award limited to nominal or special damages necessarily and logically required an award of noneconomic damages, and that, therefore, an award limited to economic damages is inadequate as a matter of law and should be set aside. Id., 229; see also Malmberg v. Lopez, supra, 208 Conn. 681.

In 1995, this court had occasion to reexamine the per se rule of Johnson in Childs v. Bainer, supra, 235 Conn. 107, wherein the jury had awarded the plaintiff $3649 in economic damages but had failed to award any non-economic damages. The trial court had denied the plaintiffs motion for additur, concluding that the award was not manifestly unjust or against the weight of the evidence. In affirming the judgment of the trial court, we held that “the common law of this state does not recognize the principle that awards limited to economic damages are inadequate as a matter of law and must be set aside, or the principle that a fact finder must award noneconomic damages each time it awards economic damages.” Id., 121. Indeed, as we had stated numerous times, “[t]he amount of a damage award is a matter peculiarly within the province of the trier of fact”; Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988); and “[i]f, on the evidence, the jury could reasonably have decided as they did, [the reviewing court] will not find error in the trial court’s acceptance of the verdict . . . .” (Internal quotation marks omitted.) Malmberg v. Lopez, supra, 208 Conn. 679. Therefore, this court disavowed the proposition that courts must consider an award of economic damages with zero noneconomic damages always to be inadequate as a matter of law.

In Childs, however, we did not expressly overrule that portion of Johnson that had held that an award limited to nominal or special damages is inadequate as a matter of law. Rather, this court distinguished Childs from Johnson on two grounds. First;, the plaintiff in Childs was awarded only 19 percent of the total amount of economic damages claimed; Childs v. Bainer, supra, 235 Conn. 118; whereas in Johnson, the plaintiffs had been awarded the exact amount of the economic damages claimed. Johnson v. Franklin, supra, 112 Conn. 232. Second, the evidence of physical injuries as well as damages in Childs was “neither substantial nor uncontested,” whereas in Johnson, both the physical injuries and economic damages had been both substantial and uncontested. Childs v. Bainer, supra, 118. As we explained in Childs, “the plaintiff was not entitled to an additur on the basis of our decision in Johnson v. Franklin, supra, [229] .... In Johnson, the verdict rendered for each of the three plaintiffs ‘was for the exact amount of the special damages proved and with no allowance for the pain or the physical injuries suffered which were substantial.’ Because the award was for more than mere nominal damages, the jury had found that the defendant was liable and that the plaintiffs’ injuries were substantial. We concluded that where the plaintiffs are entitled to recover damages for their injuries, an award limited to nominal or special damages is ‘manifestly inadequate’ and should be set aside. Id., 232.

“[The case of the plaintiff in Childs] is distinguishable from Johnson. First, in this case the jury did not award the entire amount of claimed economic damages, but only 19 percent of that amount. Second, the evidence of physical injury offered by the plaintiff was neither substantial nor uncontested. Thus, the damages awarded by the jury were not manifestly inadequate, and the plaintiff was not entitled, under the rationale of Johnson, to an additur or, in the alternative, to a new trial in accordance with § 52-228b.” Childs v. Bainer, supra, 235 Conn. 117-18.

In the present case, the defendant points out that in the aftermath of Childs, because it did not expressly overrule Johnson, our trial courts have struggled with what is left of Johnson and what general rules to apply. Trial courts have differed in their answers to these questions. Some have taken the position that, after Childs, an award of economic damages without noneco-nomic damages is no longer inadequate as a matter of law. Other trial courts have treated Childs as an exception to Johnson, and have distinguished the cases before them from Childs. Compare Diakomis v. Dias, Superior Court, judicial district of Fairfield, Docket No. 95032351 IS (February 20, 1998); Pearson v. Dobies, Superior Court, judicial district of Litchfield, Docket No. 950069399 (December 10, 1997); Mazur v. Mardoian, Superior Court, judicial district of Stamford-Norwalk, Docket No. 9301350905 (August 25, 1997); Distasio v. Delpo, Superior Court, judicial district of Waterbury, Docket Nos. 950127201, 940124137 (July 18, 1997); Prince v. Sanderson, Superior Court, judicial district of Litchfield, Docket No. 950069723 (July 11, 1997); Horan v. Seigel, Superior Court, judicial district of New London, Docket No. 534152 (May 1, 1997) (19 Conn. L. Rptr. 418); Brady v. Mac Candlewood Co., Superior Court, judicial district of Danbury, Docket No. 315726 (March 5, 1997); Waskewicz v. Detullio, Superior Court, judicial district of Ansonia-Milford, Docket No. 0049192S (February 3, 1997); and Simard v. Maryland Casualty Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 920513929S (October 18, 1995).

The defendant argues that Childs and not Johnson controls the present case because the plaintiff was not awarded the exact amount of his claimed economic damages. The plaintiff counters that this case fits squarely within the confines of Johnson because the jury did award him the exact amount of medical expenses he incurred as a result of the defendant’s negligence. We are, nevertheless, persuaded that any attempt to reconcile the two cases or to pigeonhole this case would require the court to establish an arbitrary demarcation of what percentage of a full economic damage recovery will mandate an award of noneco-nomic damages. Such arbitrary line drawing is both unnecessary and, indeed, unwise. Despite the factual distinctions between the two cases, and despite our earlier perception that the two cases were not necessarily inconsistent with each other, upon further reflection we conclude that the holding in Johnson — that an award of economic damages that is not accompanied by an award of noneconomic damages is inadequate as a matter of law — was implicitly overruled by our holding in Childs that such an award is not always inadequate as a matter of law. Our focus on the particular facts of Childs to determine whether the damage award was adequate, effectively invalidated the per se approach to review of damage awards found in Johnson.

The Johnson rule developed out of concern that an award of economic damages with zero noneconomic damages is either ambiguous or inadequate. Upon further reflection, we recognize that those concerns are unwarranted. The assumption behind Johnson that a plaintiff who has proven that he was injured by a defendant’s negligence must, by necessity, have also proven that the negligence caused pain and suffering is not sound, for example, in cases in which the plaintiff had a preexisting condition. In such circumstances, the causal connection between the pain experienced by the plaintiff and the defendant’s conduct is not automatic. Therefore, the jury’s failure to award noneconomic damages could simply reflect its conclusion that the plaintiff had not proven that he had suffered any additional pain as a result of the defendant’s conduct. Hence, the other underpinning of Johnson, that every such verdict is ambiguous because it may reflect the jury’s uncertainty as to the defendant’s liability, is also fragile.

Additionally, because trial courts currently have the authority to remedy an award of inadequate damages, the Johnson rule is unnecessary. In Birgel v. Heintz, 163 Conn. 23, 27-28, 301 A.2d 249 (1972), we held that “[i]n passing upon a motion to set aside a verdict, the trial judge must do just what every juror ought to do in arriving at a verdict. The juror must use all his experience, his knowledge of human nature, his knowledge of human events, past and present, his knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his verdict accordingly. . . . The trial judge in considering the verdict must do the same . . . and if, in the exercise of all his knowledge from this source, he finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside that verdict and to grant a new trial. . . . The trial judge has a broad legal discretion and his action will not be disturbed unless there is a clear abuse. ... A mere doubt of the adequacy of the verdict is an insufficient basis for such action. ... A conclusion that the jury exercised merely poor judgment is likewise insufficient. . . . The ultimate test which must be applied to the verdict by the trial court is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption.” (Citations omitted; internal quotation marks omitted.) General Statutes § 52-216a is a codification of this common-law rule and implicitly incorporates the Birgel standard. By creating a system that allows inadequate awards to be remedied without sacrificing the discretion of either the jury or that of the the trial court, the additur statute renders the per se rule unnecessary.

Finally, the most notable limitation on the trial court’s authority to act pursuant to § 52-216a derives from a litigant’s constitutional right to have issues of fact determined by a jury. Mather v. Griffin Hospital, supra, 207 Conn. 138. “The right to a jury trial is fundamental in our judicial system, and this court has said that the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court.” Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970). Because in setting aside the verdict, the trial court deprives the party in whose favor the verdict was rendered of his constitutional right to have factual issues resolved by the jury, our role generally is to examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion. Palomba v. Gray, 208 Conn. 21, 25, 543 A.2d 1331 (1988). Because the Johnson per se rule undermines the principle that litigants have a constitutional right to have issues of fact, including damages, determined by a jury, the need to cling to the per se rule is even more attenuated.

Therefore, we conclude that the per se rule from Johnson no longer remains useful or viable, and we expressly disavow it. Rather than decide that an award of only economic damages is inadequate as a matter of law, the jury’s decision to award economic damages and zero noneconomic damages is best tested in light of the circumstances of the particular case before it. Accordingly, the trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue. That decision should be made, not on the assumption that the jury made a mistake, but, rather, on the supposition that the jury did exactly what it intended to do.

As we previously have stated, although the trial court has a broad legal discretion in this area, it is not without its limits. “Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury; Rickert v. Fraser, 152 Conn. 678, 681, 211 A.2d 702 (1965); the court’s action cannot be reviewed in a vacuum. The evidential underpinnings of the verdict itself must be examined. ‘Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached.’ Horvath v. Tontini, 126 Conn. 462, 464, 11 A.2d 846 (1940).” Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915 (1980). “[I]f there is a reasonable basis in the evidence for the jury’s verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work their will.” Id., 419.

In this case, the jury could have accepted the evidence that it was advisable for the plaintiff to see his chiropractor more frequently than usual following the accident, but that the accident did not cause him actually to suffer greater pain than he already had experienced as a result of his preexisting condition. Certainly, the jury reasonably could have found that the accident had not aggravated the plaintiffs condition, and that his pain was the same as what he had experienced before his accident with the defendant. Thus, there was a sufficient evidentiary basis for the jury’s verdict.

Therefore, the judgment of the trial court is reversed and the case is remanded to the trial court with direction to render judgment on the verdict.

In this opinion the other justices concurred.

       General Statutes § 52-572h provides in relevant part: “Negligence actions. Doctrines applicable. Liability of multiple tortfeasors for damages, (a) For the purposes of this section: (1) ‘Economic damages’ means compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages; (2) ‘noneconomic damages’ means compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering; (3) ‘recoverable economic damages’ means the economic damages reduced by any applicable findings including but not limited to set-offs, credits, comparative negligence, additur and remittitur, and any reduction provided by section 52-225a; (4) ‘recoverable noneconomic damages’ means the non-economic damages reduced by any applicable findings including but not limited to set-offs, credits, comparative negligence, additur and remittitur.

       This action was originally brought by the plaintiff and his wife, Helen Wichers, against the defendant and his wife, Joanna Hatch, as co-owners of the motor vehicle driven by the defendant. References herein to the plaintiff and the defendant are to Thomas Wichers and Willie Hatch, respectively.

       The plaintiffs claim for “[fjuture medical treatment” remained on the verdict form over the defendant’s objection on the ground that the evidence did not support such an award.

       General Statutes § 52-2281) provides: “No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict maybe set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”

       Practice Book § 65-2 provides: “Motion for Transfer from Appellate Court to Supreme Court
      “After the filing of an appeal in the appellate court, but in no event after the cáse has been assigned for hearing, any party may move for transfer to the supreme court. The motion, addressed to the supreme court, shall specify, in accordance with provisions of Section 66-2, the reasons why the party believes that the supreme court should hear the appeal directly. A copy of the memorandum of decision of the trial court, if any, shall be attached to the motion. The filing of a motion for transfer shall not stay proceedings in the appellate court.
      “If, at any time before the final determination of an appeal, the appellate court is of the opinion that the appeal is appropriate for supreme court review, the appellate court may file a brief statement of the reasons why transfer is appropriate. The supreme court shall treat the statement as a motion to transfer and shall promptly decide whether to transfer the case to itself.”

       General Statutes § 52-216a provides in relevant part: “Reading oí agreements or releases to jury prohibited. Adjustments for excessive and inadequate verdicts permitted. ... If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. . . .”

       To the extent that Johnson presumed the former, it is inconsistent with our well established jurisprudence that evidence should be construed to support a jury’s verdict. See, e.g., Mather v. Griffin Hospital, supra, 207 Conn. 139.


source: Caselaw Access Project

license: Public Domain

text:
    HELEN GLADU v. JOAO SOUSA
    (SC 16125)
    Borden, Norcott, Katz, Palmer, Callahan, Ronan and Wollenberg, Js.
    Argued December 8, 1999
    officially released February 15, 2000

      William J. Melley III, with whom, on the brief, was Roger L. Brewer, for the appellant (defendant).

      Timothy C. Moynahan, with whom, on the brief, was Jeffrey J. Oliveira, for the appellee (plaintiff).

      Jack G. Steigelfest and Constance L. Epstein filed a brief for the Connecticut Defense Lawyers Association as amicus curiae.
   Opinion

KATZ, J.

After examining the record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was improvidently granted.

In brief, the plaintiff, Helen Gladu, filed a motion for additur following the jury’s verdict awarding economic damages only. The trial court granted that motion, adding an award of noneconomic damages, and, after the defendant refused the additur, ordered a new trial on the issue of damages. The defendant, Joao Sousa, appealed from the trial court’s judgment. The Appellate Court, in reviewing the action of the trial court on a motion to set aside a verdict, in accordance with our well established precedent, examined whether the court had abused its discretion and whether, on the evidence presented, the jury fairly could have reached the conclusion that it did. See Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972), and cases cited therein.

“In passing upon a motion to set aside a verdict, the trial judge must do just what every juror ought to do in arriving at a verdict. The juror must use all his experience, his knowledge of human nature, his knowledge of human events, past and present, his knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his verdict accordingly. . . . The trial judge in considering the verdict must do the same . . . and if, in the exercise of all his knowledge from this source, he finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside that verdict and to grant a new trial. . . . The trial judge has abroad legal discretion and his action will not be disturbed unless there is a clear abuse. ... A mere doubt of the adequacy of the verdict is an insufficient basis for such action. ... A conclusion that the jury exercised merely poor judgment is likewise insufficient. . . . The ultimate test which must be applied to the verdict by the trial court is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption.” (Citations omitted; internal quotation marks omitted.) Id., 27-28.

Without relying on the per se rule of Johnson v. Franklin, 112 Conn. 228, 232, 152 A. 64 (1930), which we overruled today in Wichers v. Hatch, 252 Conn. 174, 176, 745 A.2d 789 (2000), the trial court in this case evaluated the evidence and the jury’s award in a manner consistent with its statutory authority and our jurisprudence sanctioning the exercise of its discretion in appropriate circumstances. Exercising its appropriate role, the Appellate Court properly affirmed the trial court’s judgment.

The appeal is dismissed.

In this opinion the other justices concurred.

       We granted the defendant’s petition for certification to appeal from the judgment of the Appellate Court; Gladu v. Sousa, 52 Conn. App. 796, 727 A.2d 1286 (1999); limited to the following issue: “Did the Appellate Court properly hold that the trial court was within its discretion in ordering an additur where ajury had determined that aplaintiff was entitled to economic damages but no noneconomic damages?” Gladu v. Sousa, 249 Conn. 921, 733 A.2d 233 (1999).

       General Statutes § 52-216a provides: “Reading of agreements or releases to jury prohibited. Adjustments for excessive and inadequate verdicts permitted. An agreement with any tortfeasor not to bring legal action or a release of a tortfeasor in any cause of action shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors, nor shall any other agreement not to sue or release of claim among any plaintiffs or defendants in the action be read or in any other way introduced to a jury. If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. This section shall not prohibit the introduction of such agreement or release in a trial to the court.”


author: SULLIVAN, J.

text:
    ROBERTA ANN SHERWOOD v. DANBURY HOSPITAL
    (SC 16085)
    McDonald, C. .1., and Borden, Katz, Palmer, Sullivan, Lavery and Flynn, Js.

      Argued November 3, 1999
    officially released February 29, 2000

      Carey B. Reilly, with whom was Michael P. Koskoff, for the appellant (plaintiff).

      Donald W. OBrien, with whom was Amy F. Goodusky, for the appellee (defendant).
   Opinion

SULLIVAN, J.

The plaintiff, Roberta Ann Sherwood, appeals from the judgment of the trial court rendered following the granting of summary judgment for the defendant, Danbury Hospital (hospital). On appeal, the plaintiff claims that the trial court, in granting the defendant’s motion for summary judgment, improperly concluded that the plaintiff’s action was barred by the three year statute of repose contained in General Statutes § 52-584. The plaintiff also claims that the trial court improperly granted the defendant’s motion to strike her claim that the defendant had committed unfair or deceptive acts or practices in the conduct of trade or commerce in violation of the Connecticut Unfair Trade Practices Act (CUTPA). See General Statutes § 42-110b (a).

We conclude that there is a genuine issue of material fact as to whether the statute of repose in § 52-584 was tolled by the continuing course of conduct doctrine; see, e.g., Blanchette v. Barrett, 229 Conn. 256, 275-77, 640 A.2d 74 (1994); based on the defendant’s continuing wrongful conduct. Accordingly, we reverse that part of the trial court’s judgment granting the defendant’s motion for summary judgment. We conclude, however, that the trial court properly granted the defendant’s motion to strike the plaintiffs CUTPA claim and, accordingly, affirm that part of the trial court’s judgment striking the plaintiffs claim under CUTPA. Because we reverse that part of the trial court’s judgment granting summary judgment in favor of the defendant, we do not decide the other issues pertaining to the granting of the defendant’s motion for summary judgment that the plaintiff raises in her appeal.

The record reveals the following pertinent facts and procedural history. On March 2, 1985, the Food and Drug Administration approved the enzyme-linked immunosorbant assay test (ELISA test) for the purpose of screening units of blood for antibodies associated with the human immunodeficiency viras (HIV). Ramon Kranwinkel, a pathologist and hematologist, who, at all relevant times, was the director of the blood bank at the hospital, testified in a deposition that he had learned of the Food and Drag Administration’s ratification of the ELISA test “sometime in 1985, earlier that year, probably around February, but [was] not sure of the exact date.”

On April 18, 1985, Dennis Ogelia, the plaintiffs treating physician, admitted the plaintiff to the hospital for the treatment of congenital scoliosis. The next day, April 19,1985, the plaintiff underwent a posterior spinal fusion during which she received four units of blood. The blood was provided to the hospital by the American Red Cross (Red Cross), and had an expiration date of April 22, 1985.

The plaintiff, in an uncontroverted affidavit, swore that, prior to her surgery: (1) she “did not know of the risk of contracting HIV from a blood transfusion and [that] the [defendant did not inform [her] of [that] risk”; (2) she “did not know that [she] had the option [of banking her] own blood for the surgery and [that] the [defendant did not tell [her] of [that] option”; (3) she “was not aware that there was a test to detect the presence of . . . IIIV [antibodies] in blood”; (4) she “did not know that [she] was given untested blood”; and (5) “no one ever told [her] that [she] could [have] postpone[d] [the] surgery until tested blood was available.”

Kranwinkel testified that neither he nor anyone else from the hospital blood bank had told the plaintiff, prior to surgery, that the ELISA test was available for screening blood for the presence of HIV antibodies. Kranwinkel further testified that when the plaintiff was transfused, he had assumed that the blood had not been tested for the presence of HIV antibodies.

On, or shortly after, April 20, 1985, the day after the plaintiffs transfusion, Kranwinkel received a letter from the Red Cross. The letter stated that, “effective April 22,1985, all units of whole blood and blood components routinely distributed by the American Red Blood Services, Connecticut Region, will have been determined to be nonreactive when tested for [antibodies associated with HIV].” The letter requested the hospital blood bank to “promptly return” to the Red Cross all units of blood remaining in its inventory that had not been tested for HIV antibodies. Kranwinkel testified that the hospital blood bank had complied with this request. Kranwinkel further testified that, had the plaintiff not received the units of blood that were used during her transfusion, those units would have been among the units returned to the Red Cross.

The plaintiff was discharged from the hospital on May 14, 1985. There was no evidence that the relationship between the plaintiff and the defendant continued after she was discharged.

On September 1, 1994, following a routine blood test ordered by Micheline Williams, the plaintiffs physician, the plaintiff learned for the first time that she had contracted HIV. An investigation ensued, through which the plaintiff learned, for the first time, on March 14, 1995, that the source of her HIV infection was contaminated blood administered to her during the April 19, 1985 transfusion.

The plaintiffs uncontroverted affidavit also contained numerous, specific factual statements regarding the absence of any information given by the defendant to the plaintiff following the transfusion. She swore that “at no time” did the defendant tell her that: (1) “the ELISA test was available at the time of [her] surgery”; (2) “the blood [that she] was given during surgery was not tested for the presence of HIV [antibodies]”; (3) “the blood [that she] was given [during] surgery [had been] ‘recalled’ by the Red Cross”; and (4) “[she] could have postponed her surgeiy ... a few days” until tested blood became available.

The plaintiff also submitted, in opposition to the defendant’s motion for summary judgment, an uncon-troverted affidavit from Elizabeth Donegan, a physician who, from 1985 to 1991, had been in charge of operating a blood bank at a hospital affiliated with the University of California at San Francisco, a community with a large population infected with HIV. Donegan was retained as an expert witness by the plaintiff and stated in her sworn affidavit that: (1) she directed a program at her hospital between July, 1987, and October, 1987, “to notify all persons who had been recipients of untested blood dating back to approximately the time [her hospital] was aware of the . . . presence [of HIV] in [the] community”; and (2) in March, 1987, “the Center for Disease Control . . . issued a recommendation that recipients of multiple transfusions between 1978 and late spring of 1985 be advised that they were at risk for . . . HIV . . . infection and [be] offered HIV antibody testing.”

The plaintiff filed this complaint on July 9,1996, alleging in the first count that the defendant had been negligent, and, in the second count, that the defendant had committed unfair or deceptive acts or practices in the conduct of trade or commerce in violation of CUTPA. The trial court, Grogins, J., granted the defendant’s motion to strike the plaintiffs CUTPA claim. The plaintiff reserved her right to appeal the trial court’s decision to strike that count, and that ruling forms one basis for the plaintiffs appeal.

In her substituted complaint, the plaintiff repeated her allegations sounding in negligence; see footnote 6 of this opinion; and eliminated her CUTPA claim in accordance with the trial court’s ruling on the defendant’s motion to strike. The defendant answered the plaintiffs substituted complaint, and pleaded a special defense, namely, that the statute of repose in § 52-584 barred the plaintiffs negligence claim.

The trial court, Radcliffe, J., concluded that, because the plaintiffs action had been filed on July 9, 1996, more than eleven years following the blood transfusion that she received at the hospital on April 19, 1985, the statute of repose in § 52-584 barred her negligence claim. Accordingly, the trial court granted the defendant’s motion for summary judgment on the remaining negligence count and rendered judgment thereon. This conclusion forms a second basis for the plaintiffs appeal.

I

THE SUMMARY JUDGMENT

We first consider whether the trial court properly granted the defendant’s motion for summary judgment. Specifically, we consider the plaintiffs claim that there is a genuine issue of material fact as to whether the statute of repose in § 52-584 was tolled by the continuing course of conduct doctrine based on the defendant’s alleged wrongful conduct after the plaintiffs transfusion.

“The standard of review of a trial court’s decision to grant summary judgment is well established. [W]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Connecticut National Bank v. Rytman, 241 Conn. 24, 37, 694 A.2d 1246 (1997). “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).

The plaintiff claims that the trial court improperly concluded that the three year statute of repose in § 52-584 barred her negligence claim. That statute provides in relevant part that “[n]o action . . . caused by negligence ... or by malpractice of a . . . hospital . . . may be brought more than three years from the date of the act or omission complained of. . . .’’(Emphasis added.) The plaintiff contends that “[t]he defendant’s acts of negligence continued long after, and related to, the original transfusion . . . .” The plaintiff claims the continuing course of conduct doctrine thus tolled the commencement of the running of the three year period under the statute of repose in § 52-584 until March 14, 1995, when the plaintiff first learned that she had suffered actionable harm. The plaintiff further argues that, because she brought this action against the defendant on June 11, 1996, it was timely commenced.

The defendant claims, to the contrary, that the three year period began to run in May, 1985, when the plaintiff was discharged from the hospital. Although the defendant recognizes that, under some circumstances, the continuing course of conduct doctrine serves to toll a statute of limitations, it disclaims the applicability of the doctrine in this case.

A

We begin by noting the relevant “ ‘date of the act or omission complained of,’ as that phrase is used in § 52-584, is ‘the date when the negligent conduct of the defendant occurs and . . . not the date when the plaintiff first sustains damage.’ ” Blanchette v. Barrett, supra, 229 Conn. 265. This court has recognized, however, that a statute of limitations “may be tolled under the . . . continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date. See, e.g., Connell v. Colwell, 214 Conn. 242, [254-55], 571 A.2d 116 (1990); Fichera v. Mine Hill Corp., 207 Conn. 204,209-10, 541 A.2d 472 (1988); Cross v. Huttenlocher, 185 Conn. 390, 400, 440 A.2d 952 (1981); Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957) . . . .” (Citations omitted.) Blanchette v. Barrett, supra, 265-66.

“[W]e have held that in order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. . . . Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving I'ise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act. Fichera v. Mine Hill Corp., supra, 207 Conn. 209-10 (no evidence to support continuing duty on part of defendant after property sold); see, e.g., Connell v. Colwell, supra, 214 Conn. 242 (improper reliance on theory [by plaintiff in medical malpractice action]); Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 464 A.2d 18 (1983) (no continuing duty on defendant’s part after completion of roof installation); Prokolkin v. General Motors Corp., [170 Conn. 289, 299, 365 A.2d 1180 (1976)] (continuing course of conduct theory inappropriate in strict product liability action); Handler v. Remington Arms Co., supra, 144 Conn. 316 (applying continuing course of conduct doctrine to toll statute of limitations on . . . basis of continuing duty to warn of defective cartridge by manufacturer); Vilcinskas v. Sears, Roebuck & Co., [144 Conn. 170, 174, 127 A.2d 814 (1956)] (continuing course of conduct inapplicable where act completed by sale of air rifle).” (Internal quotation marks omitted.) Blanchette v. Barrett, supra, 229 Conn. 275-76.

Therefore, a precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff. In this case, the plaintiff claims that the defendant was negligent by failing to inform her of the risks associated with the blood it was supplying for her blood transfusion. See footnote 6 of this opinion. In Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 528 A.2d 805 (1987), we stated that “[t]he delivery of a service, such as providing a blood transfusion, requires the provider of that service to exercise reasonable care to avoid injury to the consumer of the service. If a plaintiff can show that the defect in the blood could reasonably have been detected or removed, the plaintiff may well be entitled to recover for the supplier’s negligent failure to detect or remove the defect.” Id., 410.

A second requirement for the operation of the continuing course of conduct doctrine is that there “must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto.” (Internal quotation marks omitted.) Blanchette v. Barrett, supra, 229 Conn. 275. This court has held this requirement to be satisfied when there was “wrongful conduct of a defendant related to the prior act.” (Internal quotation marks omitted.) Id. Specifically, in determining whether the continuing course of conduct doctrine applies to toll the repose section of the statute of limitations in § 52-584, we have held twice, in the medical treatment context, that continuing “wrongful conduct may include acts of omission as well as affirmative acts of misconduct . . . .” Id., 264 (doctor’s failure to monitor patient after initial misdiagnosis was continuing course of conduct that tolled statute of limitations); see also Cross v. Huttenlocher, supra, 185 Conn. 400 (“[b]ecause [a physician’s] negligent failure to warn [concerning the potential adverse effects from taking a particular drug] is a continuing course of conduct, the statute of limitations does not begin to run until the course of conduct is completed”); cf. Handler v. Remington Arms Co., supra, 144 Conn. 321 (manufacturer’s failure to perform its continuing duty to warn purchasers of defective gun cartridge tolls statute of limitations).

Finally, in Blanchette and Cross, the plaintiffs presented expeit testimony that the defendants’ omissions amounted to a breach of the standard of care. See Blanchette v. Barrett, supra, 229 Conn. 279 (“[t]he testimony of the plaintiff’s expert witness . . . which the jury might have found credible, was sufficient for the jury to find not only ... a continuing duty on the part of the defendant . . . but also continuing negligence on the part of the defendant based upon a breach of his professional duty of care to the plaintiff’); Cross v. Huttenlocher, supra, 185 Conn. 402 (plaintiff presented expert testimony that, “if credited by the jury, could have been sufficient to make out a case of negligent failure to warn”). In this case, we have such evidence.

B

We must determine, therefore, in light of this case law and evidentiary record, whether it was proper for the trial court to have granted the defendant’s motion for summary judgment. Specifically, we must determine whether there is a genuine issue of material fact with respect to whether the defendant: (1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the original wrong; and (3) breached that continuing duty.

We first consider whether there is a genuine issue of material fact with respect to whether the defendant committed an initial wrong upon the plaintiff. It is undisputed that: (1) prior to the plaintiffs transfusion, the Food and Drug Administration approved the ELISA test for screening units of blood for HIV antibodies; (2) Kranwinkel testified that he assumed that the plaintiff had been administered untested blood; and (3) no one from the hospital blood bank informed the plaintiff, prior to surgery, that the ELISA test was available for screening blood for the presence of HIV antibodies. Because a hospital that supplies blood for a transfusion must “exercise reasonable care to avoid injury to the [recipient of the blood]”; Zichichi v. Middlesex Memorial Hospital, supra, 204 Conn. 410; a hospital may be hable for negligently failing to inform a patient of the risks associated with the blood it has supplied for a transfusion. Therefore, we conclude that there was a genuine issue of material fact with respect to whether the defendant committed an initial wrong upon the plaintiff by failing to inform her that the blood with which she was transfused had not been screened.

We next consider whether there was a genuine issue of material fact with respect to whether the defendant owed the plaintiff “a duty that remained in existence after commission of the original wrong related thereto.” Blanchette v. Barrett, supra, 229 Conn. 275. The plaintiff presented an affidavit from Donegan, a medical expert who stated that she oversaw a program at a hospital blood bank that notified persons who had been administered blood untested for HIV antibodies. She also stated that she “felt that it was good medical practice to institute this program at the hospital.” Thus, the plaintiff presented evidence from which a reasonable jury could have found that the standard of care required the defendant to have taken steps to notify the plaintiff, after the transfusion, that the blood that she received during her transfusion was not tested for HIV antibodies.

Therefore, as in Blanchette and Cross, the plaintiff in this case presented evidence that “good medical practice” required the defendant to have acted affirmatively subsequent to a medical procedure. We conclude that, because “wrongful conduct may include acts of omission as well as affirmative acts of misconduct”; Blanchette v. Barrett, supra, 229 Conn. 264; Donegan’s affidavit was sufficient to create a genuine issue of material fact with respect to whether the defendant owed the plaintiff a continuing duty that was related to the original wrong.

Finally, we consider whether there was a genuine issue of material fact with regard to whether there was a continuing breach of the defendant’s duty of care. The plaintiff provided her own uncontroverted affidavit, in which she swore that “at no time” did the defendant tell her that: (1) “the ELISA test was available at the time of [her] surgery”; (2) “the blood [that she] was given during the surgery was not tested for the presence of HIV [antibodies]”; (3) “the blood [that she] was given [during] surgery . . . was ‘recalled’ by the Red Cross”; and (4) she “could have postponed [her] surgery . . . a few days and that tested blood would [have been] available then.” Furthermore, it is undisputed that neither party adduced evidence indicating that the relationship between the plaintiff and the defendant continued after the plaintiff was discharged from the hospital in May, 1985.

Thus, the plaintiff presented uncontroverted evidence of the defendant’s continuing failure to inform the plaintiff: (1) that the blood with which she was transfused had not been tested for the presence of HIV antibodies; (2) of the risk of contamination of the blood with HIV; and (3) that she was at risk of being infected with HIV. This continuous failure to notify is similar to the continuous failure to monitor that we found actionable in Blanchette, and the continuing failure to warn that we found actionable in Cross. Therefore, we con-elude that this evidence of the defendant’s continuing failure to notify was sufficient to create a genuine issue of material fact with regard to whether the defendant breached its ongoing duty of care to the plaintiff.

Therefore, we conclude that, because the plaintiff presented “evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto”; (internal quotation marks omitted) Blanchette v. Barrett, supra, 229 Conn. 275; there was a genuine issue of material fact with respect to whether the repose section of the statute of limitations in § 52-584 was tolled by the defendant’s continuing course of conduct. We conclude that it was improper for the trial court to have concluded that, as a matter of law, there was no continuing course of conduct. Accordingly, we reverse that part of the trial court’s judgment granting the defendant’s motion for summary judgment.

In reaching this conclusion, we reject a number of arguments made by the defendant. First, the defendant relies on Giambozi v. Peters, 127 Conn. 380, 384, 16 A.2d 833 (1940), overruled on other grounds, Foran v. Carangelo, 153 Conn. 356, 360, 216 A.2d 638 (1966), for the proposition that the continuous treatment doctrine does not apply in this case. The plaintiff, however, has not argued on appeal that the continuous treatment doctrine applies. Rather, the plaintiffs claim on appeal is that the continuing course of conduct doctrine applies to this case. The court in Giambozi did not consider whether the continuous course of conduct doctrine applied to that case and, therefore, Giambozi is inapposite.

Second, the defendant argues that “no . . . relationship at all . . . existed between the [p]laintiff and [the defendant] after May, 1985 . . . .” Concededly, in Blanchette, this court stated that “the continuing course of conduct doctrine, under the circumstances of th[e\ case, would require the jury to find ... an ongoing physician-patient relationship that had not terminated . . . the last time the plaintiff had consulted with the defendant . . . .” (Emphasis added.) Blanchette v. Barrett, supra, 229 Conn. 278. The court in Blanchette, however, also emphasized that the application of the continuing course of conduct doctrine was “conspicuously fact-bound.” Id., 276. Therefore, we do not read Blanchette to require an ongoing physician-patient relationship in all instances in the medical context in which the continuing course of conduct doctrine may apply. Rather, the requirement in Blanchette was based upon our determination that, “under the circumstances of th[at] case”; id., 278; the defendant’s affirmative continuing duty to monitor the plaintiffs illness arose from his ongoing relationship with the plaintiff.

This reading of Blanchette is supported by our discussion therein of the plaintiffs expert testimony in that case. In Blanchette, we noted that the plaintiffs expert “addressed the issue of the standard of care of a family physician. He concluded that the defendant had failed to meet the standard of care with regard to breast examinations, record keeping, management and diagnosis of a finding in the breast and follow-up treatment of a breast condition. In his opinion, the [defendant’s] entire pattern of care, especially as to [the above mentioned] points, represented a significant deviation from the standard of care.” (Emphasis added; internal quotation marks omitted.) Id., 269-70.

In this case, the defendant’s affirmative duty to notify the plaintiff was not conditioned upon the plaintiff maintaining an ongoing relationship with the defendant. On the contrary, the plaintiffs expert stated in an affidavit that her hospital had notified “all persons who had been recipients of untested blood dating back to approximately the time [the hospital was] aware of the . . . presence [of HIV] in [the] community.” (Emphasis added.) She also attested to the fact that approximately 17,000 recipients had been so notified. Furthermore, there was no evidence that it would have been “good medical practice” to inform only those patients who had maintained an ongoing relationship with the hospital. Therefore, we conclude that the absence of any ongoing physician-patient relationship beyond May, 1985, when the plaintiff was discharged from the hospital, would not necessarily preclude a jury from applying the continuing course of conduct doctrine in this case.

Finally, the defendant claims that, because it “had no knowledge of [the plaintiffs] illness until nine years after it had ceased to treat her, the [p]laintiff cannot sustain a claim that a continuing course of conduct tolled the [s]tatute of [l]imitations . . . .” We disagree.

Although there was no evidence to suggest that the defendant was aware that the plaintiff had been infected with HIV before 1994, the plaintiff does not claim that the defendant was negligent solely for failing to warn her that she actually had been infected with HIV. See footnote 6 of this opinion. Rather, the plaintiff has presented evidence that creates a genuine issue of material fact with respect to whether the defendant was negligent in failing to notify her: (1) that the blood with which she had been transfused had not been tested for the presence of HIV antibodies; (2) of the risk of contamination of the blood with HIV; and (3) that she was at risk of being infected with HIV. Therefore, we conclude that the defendant’s lack of knowledge as to the plaintiffs actual infection status does not preclude a reasonable jury from concluding that the defendant had a duty to notify the plaintiff, as outlined previously.

II

THE MOTION TO STRIKE THE CUTPA CLAIM

We now consider whether the trial court properly granted the defendant’s motion to strike the plaintiffs CUTPA claim. The standard of review of a trial court’s granting of a motion to strike is well established. “Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on [a defendant’s motion to strike] is plenary. ... In an appeal from the granting of a motion to strike, we must read the allegations of the complaint generously to sustain its viability, if possible . . . . We must, therefore, take the facts to be those alleged in the complaint that has been stricken and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency.” (Citations omitted; internal quotation marks omitted.) ATC Partnership v. Windham, 251 Conn. 597, 603, 741 A.2d 305 (1999).

The plaintiffs complaint alleged that the defendant’s actions “constitute[d] unfair or deceptive acts or practices in the conduct of a trade or commerce in violation of ... § 42-110b.” The trial court granted the defendant’s motion to strike the plaintiffs CUTPA claim.

“[T]he touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services is implicated, aside from medical competence or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel. Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation. To hold otherwise would transform every claim for medical malpractice into a CUTPA claim. Accordingly, within this framework, we must review the plaintiffs allegations of CUTPA violations and look to the underlying nature of the claim to determine whether it is really a medical malpractice claim recast as a CUTPA claim.” Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 38, 699 A.2d 964 (1997). The court in Haynes also cited with approval a Washington Court of Appeals decision that stands for the proposition that “violations predicated on negligence or malpractice, whether legal or medical, are not covered because those claims address only competence.” Id., 35, citing Quimby v. Fine, 45 Wash. App. 175, 180, 724 P.2d 403 (1986).

The plaintiff claims that her allegation that the defendant transfused the plaintiff with blood “that had not been tested for the presence of HIV [antibodies] when . . . tested blood was available” raises a claim relating to the entrepreneurial or commercial aspects of the defendant’s business. The plaintiff argues that “[t]he clear implication that can be drawn from this allegation is that the hospital made a business decision to use old, shelf blood instead of incurring the additional expense of testing or obtaining good blood.”

We disagree that, based on the plaintiff’s allegation, it is a “clear implication” that the defendant “made a business decision to use old, shelf blood . . . .” The untested blood may have been administered to the plaintiff for any number of reasons that are wholly independent from the business or entrepreneurial aspects of the defendant’s business. The plaintiff has made no specific factual allegations to support her claim that the entrepreneurial or commercial aspects of the defendant’s business were implicated by its alleged decision to use untested blood when tested blood was available. Because such allegations are necessary to state a legally sufficient CUTPA claim; see Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 38; we conclude that the trial court properly granted the defendant’s motion to strike the plaintiff’s CUTPA claim. Accordingly, we affirm that part of the trial court’s judgment granting the defendant’s motion to strike this claim.

With respect to the summary judgment for the defendant on the first count, the judgment is reversed and the case is remanded for further proceedings. With respect to the striking of the second count, the judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiff appealed from the judgment of the trial court to the Appellate Court and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

       General Statutes § 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 physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the ii\jury is first sustained or discovered or in the exercise of reasonable 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 .. . .” (Emphasis added.)

         General Statutes § 42-110b (a)provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

       Although the record reveals that the plaintiff clearly raised this claim before the trial court, the trial court’s memorandum of decision is not perfectly clear with respect to whether it considered this legal argument in granting the defendant’s motion for summary judgment. The record, however, is adequate to review the plaintiffs claim and, accordingly, we review it.

       Specifically, we do not address the following issues raised by the plaintiff: (1) whether the trial court improperly granted the defendant’s motion for summary judgment when the plaintiffs claim of breach of a fiduciary duly was not barred by § 52-584; (2) whether the trial court improperly granted the defendant’s motion for summary judgment based on the three year statute of repose in § 52-584 when the statute violated the plaintiffs rights to redress an injury and due process under the state constitution, and the plaintiffs rights to equal protection under both the federal and state constitutions; (3) whether the three year statute of repose in § 52-584 was tolled under the continuing course of conduct doctrine based on a special, fiduciary relationship between the parties that gave rise to a continuing duly; (4) whether the three year statute of repose in § 52-584 was tolled under General Statutes § 52-595 because the defendant fraudulently concealed from the plaintiff her cause of action; and (5) whether the three year statute of repose in § 52-584 was tolled by the discovery rule until the plaintiff discovered the essential elements of her cause of action.

       The plaintiffs original complaint, as well as her substituted complaint, alleged that the defendant “was negligent in at least one of the following ways, some or all of which may be continuing, in that the [djefendant:
      “a. administered blood to the [pjlaintiff that was contaminated with HIV;
      “b. administered blood to the [pjlaintiff that had not been tested for the presence of HIV;
      “c. administered blood to the [pjlaintiff that had not been tested for the presence of HIV when tested blood was available for administration;
      “d. failed to test the blood given to the [pjlaintiff for the presence of HIV;
      “e. failed to confirm that the blood which it administered to the [pjlaintiff had been adequately tested for the presence of HIV;
      “f. failed to adopt an adequate system of quality assurance to monitor the quality of blood being given to patients of the [djefendant; including the [pjlaintiff;

        “g. failed to adopt an adequate infection control program to prevent the acquisition and/or administration of blood that had not been tested for, or was contaminated with, HIV;
      “h. failed to adopt adequate rules, regulations and protocols for the screening of blood;
      “i. failed to warn the [pjlaintiff that the blood had not been tested for the presence of HIV;
      “j. failed to warn the [pjlaintiff of the risk of contamination of HIV;
      “k. failed to advise the [pjlaintiff or her physician to postpone elective surgery until safe blood became available;
      “Í. failed to advise the [pjlaintiff of her option to obtain [a] homologous blood transfusion through a ‘directed donation’ program;
      “m. failed to advise the [pjlaintiff that both tested and untested blood were available for administration;
      “n. failed to advise the [pjlaintiff that the ELISA test was available for testing blood for the presence of HIV; [and]
      “o. failed to advise the [pjlaintiff that she had been administered blood contaminated with HIV and/or that she, therefore, had a risk of infection with HIV.”

       The plaintiff alleged that the actions of the defendant “constitute unfair or deceptive acts or practices in the conduct of a trade or commerce in violation of ... § 42-110b.”

       Although the plaintiff claims in one part of her brief that her action was brought on June 11, 1996, the record reveals that the action was brought on July 9, 1996. This discrepancy is without consequence for purposes of our analysis.

       Although this court occasionally has referred to the statutory language in § 52-584 that “no such action may be brought more than three years from the date of the act or omission complained of’ as part of the “statute of limitations” contained in § 52-584; see, e.g., Blanchette v. Barrett, supra, 229 Conn. 274; this restrictive language in § 52-584 has been referred to more precisely as the “repose section of the statute of limitations." Id., 258; see also id., 258 n.1. Likewise, in this case, the repose section of § 52-584 is at issue.

       The plaintiff argues that the continuing course of conduct doctrine is applicable in this case both because of the defendant’s later wrongful conduct and because of the existence of a special relationship between the plaintiff and the defendant. Because we conclude that a genuine issue of material fact exists as to whether the defendant’s later allegedly wrongful conduct tolled the statute of repose, we do not consider whether a special relationship existed between the parties that could serve to toll the statute of repose.

       Although “[t]hat duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong”; Blanchette v. Barrett, supra, 229 Conn. 275; there is no evidence suggesting that the duty had terminated in such a manner in this case.

       Because the plaintiffs allegations relating only to the hospital’s continuous failure to inform her of the risks related to the transfusion are relevant to the determination of whether the continuing course of conduct doctrine applies in this case, we express no view as to the plaintiffs other allegations supporting her claim of negligence. See footnote 6 of this opinion.
      We note, however, that, under the continuing course of conduct doctrine, the plaintiffs cause of action is not limited to the damages that flow from the continuing conduct. Rather, the “statute [of limitations] does not begin to run until [the] course of conduct is completed.” Handler v. Remington Arms Co., supra, 144 Conn. 321. Therefore, if the jury determines upon remand that the continuing course of conduct doctrine applies and that the defendant is liable, the plaintiff may collect damages that flow from the defendant’s initial wrongful conduct as well as those that flow from the defendant’s continuing conduct that relates to the initial wrong.

       In Blanchette and Cross, we considered cases sounding in professional negligence. See Blanchette v. Barrett, supra, 229 Conn. 258-59; Cross v. Huttenlocher, supra, 185 Conn. 391. In this case, however, the plaintiff characterizes her negligence claim against the defendant as sounding in ordinary negligence. Notwithstanding the plaintiffs characterization of her negligence claim, determining whether the defendant breached a duty owed to the plaintiff by failing to notify her of the risks associated with a medical procedure clearly requires “knowledge that is beyond the experience of an ordinary fact finder . . . .” Santopietro v. New Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996). Therefore, this claim is “akin to allegations of professional negligence or malpractice . . . .” Id. In order to prove such a claim, the plaintiff is required to present evidence from an expert so as “to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant’s actions in light of that standard.” (Internal quotation marks omitted.) Id., 227. Aware of this requirement, the plaintiff relied on Donegan’s affidavit.

       The ‘'continuing course of treatment and the continuing course of conduct doctrines are analytically separate and distinct . . . .” Blanchette v. Barrett, supra, 229 Conn. 276. While “their relevance to any particular set of circumstances . . . may overlap”; id.; 1his need not be the case. For example, in considering whether the continuous treatment doctrine or the continuous course of conduct doctrine applied in Blanchette, we concluded that the jury was required to have found, inter alia, that “some form of treatment or required, conduct . . . continued beyond” the plaintiffs last visit with the defendant. (Emphasis added.) Id., 278.
      Therefore, where, as in Blanchette, the jury could have found that treatment occurred and that there was conduct required of the defendant, both doctrines may apply. When, however, there is no evidence that the plaintiff received any treatment beyond his or her last visit with the defendant, as in this case, the continuing treatment doctrine does not apply. In this case, there was a genuine issue of material fact with respect to whether the defendant had failed to perform certain required conduct. Therefore, a jury reasonably could conclude that the continuous course of conduct doctrine applies in this case.

       Our conclusion that the continuing course of conduct doctrine may apply under certain factual scenarios in the absence of any ongoing physician-patient relationship also is bolstered by this court’s suggestion in Blanchette that a physician may have a duty to correct a previous misdiagnosis when that physician gains knowledge of his or her mistake, without regard to whether the patient continues to maintain a relationship with the physician. See Blanchette v. Barrett, supra, 229 Conn. 284 (“we disagree with the premise that a physician who has performed a misdiagnosis has a continuing duty to correct that diagnosis in the absence of proof that [the physician] subsequently learned that his [or her] diagnosis was incorrect” [emphasis added]).

       General Statutes § 42-110b provides in relevant part: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. . .

       The plaintiff also claims that the following allegations in her complaint implicate the business concerns of the defendant, namely, that the defendant was negligent in failing to: (1) “adopt an adequate system of quality assurance to monitor the quality of blood given to patients of the [defendant, including the [p]laintiff(2) “adopt an adequate infection control program to prevent the acquisition and/or administration of blood that had not been tested for, or was contaminated with, HIV”; (3) “adopt adequate rules, regulations and protocols for the screening of blood”; and (4) “advise the [p]laintiff that the ELISA test was available for testing blood for the presence of HIV [antibodies].”
      We disagree that these allegations raise claims relating to the business concerns of the defendant for reasons identical to those discussed in the text of this opinion.