ROBERT P. GOLDEN, JR.

v.

JOHNSON MEMORIAL

HOSPITAL, INC., ET AL.

(AC 20196)

Landau, Spear and Dupont, Js.

Argued April 5—officially released October 30, 2001

Counsel

for the appellant (plaintiff).

Amy F. Goodusky, for the appellee (named

defendant).

Robert F. Kappes, for the appellee (defendant Connecticut

Pathology Associates, P.C.).

SPEAR, J. In this medical malpractice action, the

plaintiff, Robert P. Golden, Jr., appeals from the summary

judgment rendered by the trial court in favor of the

defendants, Johnson Memorial Hospital, Inc. (hospital),

and Connecticut Pathology Associates, P.C. (Associates),

on their defense that the plaintiff’s action is time

claims that summary judgment was improper

because (1) the repose section of § 52-584 was tolled

by the continuing course of conduct doctrine, and (2)

the repose section would bar his claim before he could

have known that he had suffered actionable harm in

violation of article first, §§ 1 and 10, and article first,

§ 20, of the constitution of Connecticut, as amended by

article twenty-one of the amendments, and the fourteenth

The following facts and procedural history are relevant

to our resolution of the plaintiff’s appeal. In March,

1986, the plaintiff went to the hospital because he had

been suffering from a prolonged cold for over two

months and, during the previous two weeks, a lump

had formed on the right side of his neck. A few days

later, on March 24, 1986, the plaintiff underwent surgery

at the hospital to have the lump removed. On the same

day, samples of the lump tissue were sent to Associates

pathology report (1986 report) on a hospital letterhead

diagnosing the tissue as nonspecific lymphadenitis, possibly

of bacterial origin. The surgeon told the plaintiff

further treatment.

Eleven years later, in late November, 1997, the plaintiff

was injured playing flag football. A few days later,

he sought medical treatment from his family physician,

who referred him for a series of tests, including a CAT

scan and ultrasound. The test results showed that the

plaintiff had an enlarged spleen and multiple enlarged

lymph nodes. The plaintiff’s physician referred the

plaintiff to Dennis Morgan, an oncologist, for treatment.

On December 31, 1997, at Morgan’s request, the plaintiff

submitted to an exploratory laparotomy, which

revealed that he had Hodgkin’s disease.

During questioning regarding his health history, the

plaintiff informed Morgan of the lump that was removed

at the hospital eleven years earlier. Morgan requested

from the hospital a review and report regarding the

pathology slides made from the tissue samples in 1986.

Morgan’s wife, Susan Parker, a pathologist and an

employee of the hospital, reviewed the 1986 tissue sample

issued a corrected report on hospital letterhead that

reflected a change in the diagnosis, stating: ‘‘Lymph

node, right supraclavicular: Partial lymph node involvement

with Hodgkin’s disease . . . .’’

Less than six months after the corrected report was

issued, but more than twelve years after the original

diagnosis, the plaintiff commenced this action. One year

later, the hospital and Associates both filed motions

for summary judgment, claiming that the plaintiff’s

action was barred by the three year repose section of

the statute of limitations, § 52-584, and that there were

no genuine issues of material fact. The plaintiff objected

to both motions. The plaintiff claimed that the defendants

breached a continuing duty to him and, therefore,

the statute of limitations was tolled by the continuing

course of conduct doctrine. He claimed, alternatively,

that the statute of repose is unconstitutional as applied

to the circumstances of this case. At the hearing on the

motions for summary judgment, the hospital filed a

reply to the plaintiff’s objection.

The court granted both defendants’ motions for summary

judgment, finding that there was no genuine issue

of material fact as to whether the continuing course of

conduct doctrine applied and, thus, that the plaintiff’s

claims were barred by the repose section of the statute

of limitations, § 52-584. The plaintiff filed a motion for

reargument, claiming that the court improperly had

relied on the hospital’s reply brief in its memorandum of

decision. See footnote 3. The court denied the plaintiff’s

motion, and this appeal followed.

The standard of review of a trial court’s decision

to grant summary judgment is well established. ‘‘[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.’’ (Citations

omitted; internal quotation marks omitted.)

Richter v. Danbury Hospital, 60 Conn. App. 280, 286,

759 A.2d 106 (2000).

‘‘Practice Book § 17-49 . . . requires that 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. A

material fact is a fact that will make a difference in the

result of the case. . . . The facts at issue are those

alleged in the pleadings. . . . The party seeking summary

judgment has the burden of showing the absence

of any genuine issue as to all the material facts, which,

under applicable principles of substantive law, entitle

him to a judgment as a matter of law. . . . The party

opposing such a motion must provide an evidentiary

foundation to demonstrate the existence of a genuine

issue of material fact. . . . 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. . . . A

motion for summary judgment is properly granted if it

raises at least one legally sufficient defense that would

bar the plaintiff’s claim and involves no triable issue

of fact.’’ (Citations omitted; internal quotation marks

omitted.) Mountaindale Condominium Assn., Inc. v.

Zappone, 59 Conn. App. 311, 315, 757 A.2d 608, cert.

denied, 254 Conn. 947, 762 A.2d 903 (2000).

I

THE TOLLING ISSUE

The plaintiff’s principal claim is that the determination

of whether the continuing course of conduct doctrine

applies is ‘‘a factual question to be determined by

the jury.’’ He makes the subsidiary claims that the court

improperly (1) decided the question of a continuing

duty rather than determining whether a genuine issue

of material fact existed on that question and (2) based

its decision on our holding in Witt v. St. Vincent’s Medical

Center, 52 Conn. App. 699, 727 A.2d 802 (1999),

which subsequently was reversed by our Supreme Court

in Witt v. St. Vincent’s Medical Center, 252 Conn. 363,

746 A.2d 753 (2000). The plaintiff’s principal claim turns

on the question of whether the defendants had a continuing

duty to the plaintiff, and the related issues are

Our Supreme Court has recognized ‘‘that the statute

of limitations, in the proper circumstances, may be

tolled under the continuous treatment or the continuing

course of conduct doctrine, thereby allowing a plaintiff

to commence his or her lawsuit at a later date.’’

Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74

(1994). ‘‘Both of these doctrines are well established in

the jurisprudence of this state. . . . The continuous

treatment doctrine was first recognized in a medical

malpractice context in Giambozi v. Peters, [127 Conn.

380, 16 A.2d 833 (1940), overruled on other grounds,

Foran v. Carangelo, 153 Conn. 356, 360, 216 A.2d 638

(1966)]. We stated in Giambozi that [t]he term malpractice

itself may be applied to a single act of a physician

or surgeon or, again, to a course of treatment. The

Statute of Limitations begins to run when a breach of

duty occurs. When the injury is complete at the time

of the act, the statutory period commences to run at

that time. When, however, the injurious consequences

arise from a course of treatment, the statute does not

begin to run until the treatment is terminated. . . .

‘‘As an alternative, the continuing course of conduct

doctrine has also been applied to toll the statute of

limitations. In its modern formulation, we 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 the 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 rise to such a continuing

duty or some later wrongful conduct of a defendant

related to the prior act. . . .

‘‘Although the continuing course of treatment and the

continuing course of conduct doctrines are analytically

separate and distinct, their relevance to any particular

set of circumstances . . . may overlap. In underlying

policy, the doctrines have considerable similarity. In

application, both doctrines are conspicuously factbound.

‘‘These doctrines share similar supporting rationales.

The continuing course of conduct doctrine reflects the

policy that, during an ongoing relationship, lawsuits are

premature because specific tortious acts or omissions

may be difficult to identify and yet be remedied. Similarly,

[t]he policy underlying the continuous treatment

doctrine seeks to maintain the physician/patient relationship

in the belief that the most efficacious medical

care will be obtained when the attending physician

remains on a case from onset to cure.’’ (Citations omitted;

internal quotation marks omitted.) Blanchette v.

Barrett, supra, 229 Conn. 274–76.

The gravamen of the continuing course of conduct

doctrine is that a duty continues after the original wrong

is committed. Here, to prevail, the plaintiff had to show

that Associates remained under a duty to him after the

original misdiagnosis in 1986.

The plaintiff relies on our Supreme Court’s statement

in Blanchette that the application of the continuing

course of conduct doctrine is ‘‘conspicuously factbound.’’

Id., 276. The plaintiff fails to appreciate that

before the doctrine can be applied, a duty must first be

found to have existed. ‘‘The existence of a duty is a

question of law and only if such a duty is found to

exist does the trier of fact then determine whether the

defendant violated that duty in the particular situation

at hand.’’ (Internal quotation marks omitted.) Mendillo

v. Board of Education, 246 Conn. 456, 483, 717 A.2d

1177 (1998). Our view of that legal question is plenary,

and the plaintiff’s claim rises or falls on whether such

a continuing duty exists.

The plaintiff claims that the defendants owed a continuing

duty to him from the time of the original misdiagnosis

in 1986 until the issuance of the corrected report

in 1998. The plaintiff asserts that the pathologist’s duty

to the patient arises out of his examination of the

patient’s tissue, his analysis of that tissue, and his diagnosis

resulting from that examination and analysis. The

plaintiff further argues that his reliance on Villa’s diagnosis

in the 1986 report and the fact that he did not

consult with another physician because he was not

provided follow-up treatment or given instructions on

follow-up care shows that Associates had a continuing

physician-patient relationship with him.

‘‘We have stated that the test for the existence of a

legal duty of care entails (1) a determination of whether

an ordinary person in the defendant’s position, knowing

what the defendant knew or should have known, would

anticipate that harm of the general nature of that suffered

was likely to result, and (2) a determination, on

the basis of a public policy analysis, of whether the

defendant’s responsibility for its negligent conduct

should extend to the particular consequences or particular

plaintiff in the case. . . . The first part of the test

invokes the question of foreseeability, and the second

part invokes the question of policy.’’ (Citations omitted;

internal quotation marks omitted.) Id., 483–84.

Our first step in deciding whether Associates had a

duty to follow-up or instruct on follow-up care and the

extent of Associates’ duty or duties is to determine the

foreseeability of the plaintiff’s injury. When determining

whether the defendant breached a duty owed to the

plaintiff in cases sounding in professional negligence,

the plaintiff is required to present evidence from an

expert where knowledge of the duty is beyond the experience

of an ordinary fact finder. Sherwood v. Danbury

Hospital, 252 Conn. 193, 207–208 n.13, 746 A.2d 730

(2000). The affidavit of the plaintiff’s expert indicated

that Associates should have known that the plaintiff

had Hodgkin’s disease. Moreover, Associates conceded

that it committed an initial wrong against the plaintiff,

namely the misdiagnoses. We conclude that Associates

should have known from the 1986 pathology slides that

the plaintiff had Hodgkin’s disease, but failed to diagnose

it and that it was foreseeable that the plaintiff’s

injuries would include an advanced stage of Hodgkin’s

disease.

Having concluded that the plaintiff’s injuries were

foreseeable, we need to determine, as a matter of policy,

the extent of the legal duty to be imposed on Associates.

We must, therefore, determine whether Associates’

responsibility should extend to providing the plaintiff

with either follow-up treatment or instruction on followup

care.

‘‘While it may seem that there should be a remedy

for every wrong, this is an ideal limited perforce by

the realities of this world. Every injury has ramifying

consequences, like the ripplings of the waters, without

end. The problem for the law is to limit the legal consequences

of wrongs to a controllable degree. . . . The

final step in the duty inquiry, then, is to make a determination

of the fundamental policy of the law, as to

whether the defendant’s responsibility should extend

to such results.’’ (Internal quotation marks omitted.)

Mendillo v. Board of Education, supra, 246 Conn. 484.

The statute of limitations and repose sections are a

way of implementing the public policy of limiting the

legal consequences of wrongs to a controllable degree.

‘‘There are two principal reasons generally given for

the enactment of a statute of repose: (1) it reflects a

policy of law, as declared by the legislature, that after

a given length of time a [defendant] should be sheltered

from liability and furthers the public policy of allowing

people, after the lapse of a reasonable time, to plan

their affairs with a degree of certainty, free from the

disruptive burden of protracted and unknown potential

liability . . . and (2) to avoid the difficulty in proof

and record keeping which suits involving older [claims]

impose.’’ (Internal quotation marks omitted.) Sanborn

v. Greenwald, 39 Conn. App. 289, 305, 664 A.2d 803,

cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995).

Witt was the only case in which our Supreme Court

extended the duty of a pathologist, in the context of a

physician-patient relationship, to warn the plaintiff of

his concern of cancer at the time of the original diagnosis.

Witt v. St. Vincent’s Medical Center, supra, 252

Conn. 376. Eleven years after the original diagnosis, the

pathologist sent the original slides and report to the

plaintiff’s treating oncologist. On the report, the pathologist

wrote a note to the treating oncologist indicating

that at the time of the original diagnosis the pathologist

had been concerned that the plaintiff might have been

‘‘evolving a small lymphocytic lymphoma/CCL.’’ Id., 365.

Our Supreme Court concluded that whether the physician-

patient relationship with the pathologist may have

continued on the basis of his continuing duty to warn

the plaintiff of his concerns and whether his duty to

warn was continually breached were questions of material

fact and, therefore, that summary judgment was

improper. Id., 376–77. Here, there is nothing in the

record to indicate that Associates had concerns or failed

to report its complete findings to the plaintiff. Witt,

therefore, does not apply.

In Blanchette v. Barrett, supra, 229 Conn. 278–79, our

Supreme Court concluded that a family physician had

a duty to monitor a patient subsequent to a negative

diagnosis. The defendant’s duty to monitor the plaintiff’s

illness arose from his ongoing relationship with

the plaintiff. Although no ongoing relationship is

required for the continuing course of conduct doctrine

to apply, in Blanchette, the ‘‘defendant’s affirmative continuing

duty to monitor the plaintiff’s illness arose from

his ongoing relationship with the plaintiff.’’ Sherwood

v. Danbury Hospital, supra, 252 Conn. 210. Here, we do

not have that type of relationship. The plaintiff admitted

that he was not even aware that a pathologist was

involved in his diagnosis. There was no actual contact

between Associates and the plaintiff. Furthermore,

Associates performed no subsequent work for the plaintiff,

and there was nothing in the record showing that

it was required to do so.

We conclude that, as a matter of law, to expect a

pathology group to provide follow-up treatment or to

instruct a patient on follow-up care after a negative

diagnosis when there is no awareness that the diagnosis

is wrong and there is no ongoing relationship is beyond

the expectation of public policy. The plaintiff fails to

establish justification necessary to support recognition

of a legal duty on the part of Associates to provide him

with follow-up treatment or instruction on follow-up

care where there is a misdiagnosis of which Associates

was unaware. The plaintiff fails to cite any case in which

a pathologist in those circumstances, as a matter of

law, was found to have a duty to provide follow-up

treatment to a patient or to instruct a patient on followup

care.

Furthermore, ‘‘[t]he application of the continuing

course of conduct doctrine necessitates an examination

of the cases in which the statute of limitations was tolled

on the basis of that doctrine.’’ Sanborn v. Greenwald,

supra, 39 Conn. App. 296. In the context of medical

malpractice and the applicability of the continuing

course of conduct doctrine, our Supreme Court has

tolled the statute of limitations when there was a duty

to: (1) warn the plaintiff of concerns at the time of the

original diagnosis; Witt v. St. Vincent’s Medical Center,

supra, 252 Conn. 376; (2) notify the plaintiff of untested

blood; Sherwood v. Danbury, supra, 252 Conn. 197; (3)

monitor a plaintiff’s condition after a negative diagnosis

where there was an ongoing relationship; Blanchette v.

Barrett, supra, 229 Conn. 280; and (4) warn a plaintiff

of potential harmful effects of a prescription drug. Cross

v. Huttenlocher, 185 Conn. 390, 402, 440 A.2d 952 (1981).

To extend an initial duty to a pathologist to provide

follow-up treatment or to instruct a patient on follow-up

care when there is a negative diagnosis and no ongoing

relationship would basically render the statute of limitations

a nullity. That result would be against the policy

of limiting the liability of defendants to claims brought

within a reasonable time. As our Supreme Court stated

in Blanchette, ‘‘[w]e do not think that the language or

policy of the statute permits such a reading.’’ Blanchette

v. Barrett, supra, 229 Conn. 284. Accordingly, we conclude

that there was no initial duty for Associates or

the hospital to provide follow-up treatment or to

instruct the plaintiff on follow-up care; therefore, there

was no subsequent wrongful misconduct and no genuine

issue of material fact as to whether there was a

continuing duty.

The plaintiff also argues that the court improperly

decided questions of fact and ignored its obligation to

view the facts presented in the light most favorable to

him. Specifically, the plaintiff argues that the facts that

the defendants kept the pathology slides, reevaluated

the slides and issued the corrected report inferred that

there was a continuing duty; thus, the court’s holding

that there was no continuing duty was improper. We

disagree.

As we already have resolved, Associates and the hospital

had no duty to the plaintiff after the diagnosis of

the slides and the issuance of the 1986 report. There

may be a number of reasons why the defendants kept

the slides, but the plaintiff offers nothing in support of

his assertion that merely retaining the slides imposes

a continuing duty on the defendants. The reevaluation

of the slides and the corrected report resulted from the

plaintiff’s new relationship with Morgan, not the former

relationship with the defendants.

The plaintiff further argues that the court improperly

relied on a case, Witt v. St. Vincent’s Medical Center,

supra, 52 Conn. App. 699, in which the judgment subsequently

was reversed by our Supreme Court. We agree.

We may, however, rely on alternative grounds supported

by the record to sustain a judgment. Galvanek

v. Skibitcky, 55 Conn. App. 254, 257 n.5, 738 A.2d 1150

(1999). ‘‘Where the trial court reaches a correct decision

but on mistaken grounds, this court has repeatedly sustained

the trial court’s action if proper grounds exist

to support it.’’ (Internal quotation marks omitted.) Id.

Here, the court relied on our decision in Witt v. St.

Vincent’s Medical Center, supra, 707, which subsequently

was overturned by our Supreme Court in Witt

v. St. Vincent’s Medical Center, supra, 252 Conn. 376–

77. In Witt v. St. Vincent’s Medical Center, supra, 699,

we concluded that the court properly had determined

that there were no genuine issues of material fact

regarding the applicability of the continuing course of

conduct doctrine. Even though the trial court in this

case relied on our subsequently overruled decision in

Witt v. St. Vincent’s Medical Center, supra, 699, its

conclusion was proper because the defendants had no

continuing duty.

The plaintiff further argues that there is a question of

fact as to whether the corrected report and his expert’s

report together show that Associates’ 1986 misdiagnosis

was so egregious that it rises to the level of fraudulent

has not been properly preserved for our review. We

conclude that even if that argument was preserved properly

for our review, it has no merit.

To establish that the hospital had fraudulently concealed

the existence of his cause of action and so had

tolled the statute of limitations, the plaintiff had the

burden of showing in its opposition papers that the

hospital was aware of the facts necessary to establish

that cause of action and that it had intentionally concealed

those facts from the plaintiff. See, e.g., Connell

v. Colwell, 214 Conn. 242, 250, 571 A.2d 116 (1990).

There is nothing in the record that supports fraud on

the part of the hospital by intentionally concealing a

correct diagnosis from the plaintiff to prevent him from

bringing a cause of action in medical malpractice. To

the contrary, once the hospital was aware that there

was a misdiagnosis, it issued the corrected report.

II

THE CONSTITUTIONAL CLAIMS

The plaintiff claims that the court improperly concluded

that the repose section of the statute of limitations,

§ 52-584, does not violate either the state or

federal constitutions. Specifically, he argues that the

repose section of the statute of limitations, § 52-584, as

applied to him, violates (1) the open courts provision

of article first, § 10, of the constitution of Connecticut,

(2) his due process rights as guaranteed by the constitution

of Connecticut and the fourteenth amendment to

the United States constitution, and (3) his equal protection

rights as contained in article first, § 1, and article

first, § 20, of the constitution of Connecticut, as

amended by article twenty-one of the amendments, and

the fourteenth amendment to the United States constitution.

A

First, the plaintiff claims that the repose section of

§ 52-584 violates the open courts provision of article

first, § 10, of the constitution of Connecticut and that

it therefore is unconstitutional. Specifically, he argues

that (1) the repose section denies him his right to bring

a claim without providing a reasonable alternative and

(2) his right to bring a claim is protected by our Supreme

Court’s definitions of ‘‘injury’’ and ‘‘actionable harm.’’

‘‘We recognize that a party challenging the constitutionality

of a statute must prove its unconstitutionality

beyond a reasonable doubt. . . . While the courts may

declare a statute to be unconstitutional, our power to

do this should be exercised with caution, and in no

doubtful case. . . . Every presumption is to be given

in favor of the constitutionality of the statute.’’ Sanborn

v. Greenwald, supra, 39 Conn. App. 299.

Article first, § 10, of the constitution of Connecticut,

provides: ‘‘All courts shall be open, and every person,

for an injury done to him in his person, property or

reputation, shall have remedy by due course of law,

and right and justice administered without sale, denial

or delay.’’ ‘‘Article first, § 10, has been viewed as a

limitation upon the legislature’s ability to abolish common

law and statutory rights that existed in 1818, when

article first, § 10, was adopted, and which were incorporated

in that provision by virtue of being established

by law as rights the breach of which precipitates a

recognized injury . . . . Therefore, where a right

existed at common law or by statute in 1818 and became

incorporated into the Connecticut constitution by the

adoption of article first, § 10, the legislature may restrict

or abolish such incorporated right only where it provides

a reasonable alternative to the enforcement of

such right.’’ (Citations omitted; internal quotation

marks omitted.) Ecker v. West Hartford, 205 Conn. 219,

234, 530 A.2d 1056 (1987).

At issue here is the right to bring a cause of action for

injury to the plaintiff arising out of the alleged medical

negligence of the defendants, a cause of action that

existed at common law. See 2 Z. Swift, A System of the

Laws of the State of Connecticut (1796), pp. 107–108

(cause of action for trespass on the case existed where

injury suffered by plaintiff caused by neglect of

defendant).

The repose section of the statute of limitations contained

in § 52-584 provides in relevant part: ‘‘No action

to recover damages for injury to the person . . .

caused by negligence . . . or by malpractice of a physician,

surgeon . . . [or] hospital . . . may be brought

more than three years from the date of the act or omission

complained of . . . .’’

‘‘Statutes of repose are constitutional enactments

that involve a balancing of the hardship caused by the

potential bar of a just claim with the advantage of barring

stale claims. . . . When a right exists at common

law, a statute of repose functions only as a qualification

on the remedy to enforce the preexisting right.’’ (Citations

omitted; internal quotation marks omitted.) Sanborn

v. Greenwald, supra, 39 Conn. App. 305–306.

In Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170,

174, 127 A.2d 814 (1956), our Supreme Court addressed

the constitutionality of General Statutes (1949 Rev.)

§ 8324, the predecessor to § 52-584. In dicta, the court

observed that ‘‘[t]here is no reason, constitutional or

otherwise, which prevents the legislature from enacting

a statute, such as § 8324, which starts the limitation on

actions for negligence running from the date of the act

or omission complained of, even though at that date

no person has sustained damage and therefore no cause

of action has come into existence. Indeed, such a provision

accords with the purposes of statutes of limitation.

. . . It is consonant with the purpose of protecting

defendants against stale claims that the legislature

should enact a statute, such as § 8324, which may on

occasion bar an action even before the cause of action

accrues.’’ (Internal quotation marks omitted.) Id., 174–

75. Neither our Supreme Court nor this court, however,

has addressed directly the constitutionality of the

repose section of the statute of limitations, § 52-584, in

circumstances such as that of the plaintiff.

In Sanborn v. Greenwald, supra, 39 Conn. App. 306,

a legal malpractice case, we addressed the constitutionality

of the three year limitation period contained in

language to § 52-584 and had the identical effect

of barring the plaintiff’s cause of action before it had

accrued. We concluded that even though § 52-577 did

limit a common-law right that existed in 1818, it did

not restrict or abridge the cause of action because it

merely established the time period within which the

supra, 39 Conn. App. 304–305.

Both here and in Sanborn, the plaintiffs questioned

whether statutes of limitation that bar causes of action

before they accrue are constitutional. Similar to § 52-

577, § 52-584 does not, on its face, abridge or abolish

the common-law action of negligence. The plaintiff has

a right of redress that exists during the three year period

prescribed by § 52-584. By analogy, if § 52-577 may constitutionally

bar an action against an attorney for injuries

arising from legal malpractice, an action that existed

at common law, then § 52-584 also may survive such

an attack.

The plaintiff argues that § 52-584 deprives him of his

right to bring a claim of medical negligence without

providing a reasonable alternative. Specifically, he

argues that the application of § 52-584 entirely deprives

him of his right to redress because it unconstitutionally

bars his action before he is able to discover his injury.

‘‘Reasonable conditions on a cause of action do not

amount to a violation of the constitution. . . . A strict

and inflexible interpretation of article first, § 10, could

affect the legislature’s ability to pass, enact and repeal

laws. Such an encumbrance upon the legislature would

freeze common law rights in perpetuity.’’ (Internal quotation

marks omitted.) Sanborn v. Greenwald, supra,

39 Conn. App. 304. The plaintiff is not deprived entirely

of his right to redress. His right to redress is limited to

a specified period of time. The common-law right that

the plaintiff claims was abridged by the application of

§ 52-584 is the right to bring an action in tort for medical

malpractice against a hospital and a pathologist. Section

52-584 restricts the right to bring an action for medical

negligence only to the extent that it restricts the time for

bringing the action, which we conclude is reasonable, as

we did relative to § 52-577 in Sanborn.

Our Supreme Court has ‘‘specifically determined that

a lawsuit commenced more than three years from the

date of the negligent act or omission complained of is

barred by the statute of limitations, § 52-584, regardless

of whether the plaintiff had not or, in the exercise of

care, could not reasonably have discovered the nature

of the injuries within that time period. Stein v. Katz,

213 Conn. 282, 285, 567 A.2d 1183 (1989); Catz v.

Rubenstein, 201 Conn. 39, 49–50, 513 A.2d 98 (1986);

McDonald v. Haynes Medical Laboratory, Inc., 192

Conn. 327, 334, 471 A.2d 646 (1984).’’ Blanchette v. Barrett,

supra, 229 Conn. 265. In light of our Supreme

Court’s previous decisions, we cannot agree with the

plaintiff’s argument.A common-law cause of action may

be limited by the statute of limitations, regardless of

whether the cause of action was discovered or could

have been discovered within the time prescribed.

The plaintiff claims that his right to bring a claim is

protected by our Supreme Court’s definition of ‘‘injury’’

as contained in article first, § 10, of the constitution of

Connecticut. Relying on Catz v. Rubenstein, supra, 201

Conn. 43–47, the plaintiff argues that our Supreme Court

has defined ‘‘injury,’’ specifically in the context of § 52-

584, to mean ‘‘actionable harm,’’ which accrues only

when the plaintiff discovers the essential elements of

his cause of action. The plaintiff misapplies Catz.

In Catz v. Rubenstein, supra, 201 Conn. 50, our

Supreme Court specifically stated that its holding would

‘‘only affect causes of action not barred by the repose

portion of § 52-584 which bars suit brought ‘more than

three years from the [date of the] act or omission complained

of.’ ’’ Here, we have a cause of action that is

barred by the repose section of the statute of limitations,

§ 52-584; thus, the holding in Catz does not apply.

B

The plaintiff claims that application of the repose

section of the statute of limitations, § 52-584, denies

him the property right to bring a claim without due

process in violation of our state constitution and the

fourteenth amendment to the United States constitution.

We decline to address that claim. Although the

plaintiff does cite one case in his principal brief on

inadequate. ‘‘Where a claim receives only cursory attention

in the brief without substantive discussion, it is

deemed to be abandoned.’’ (Internal quotation marks

omitted.) In re Amanda A., 58 Conn. App. 451, 459, 755

A.2d 243 (2000). The plaintiff’s claim is inadequately

briefed and, therefore, is deemed abandoned.

C

The plaintiff finally argues that the repose section of

the statute of limitations violates his equal protection

rights as contained in article first, § 1, and article first,

§ 20, of the constitution of Connecticut, as amended by

article twenty-one of the amendments, and the fourteenth

amendment to the United States constitution.

The plaintiff argues that the repose section of the statute

of limitations, § 52-584, treats similarly situated victims

of medical malpractice in a disparate fashion. Victims

whose diseases have a long latency period, who may

be barred from filing a claim if the malpractice is not

discovered within three years, are treated differently

from other tort victims. We are not persuaded.

‘‘When a statute is challenged on equal protection

grounds . . . the reviewing court must first determine

the standard by which the challenged statute’s constitutional

validity will be determined. . . . When a statutory

classification impinges upon an inherently suspect

class or affects a fundamental personal right, the statute

is subject to strict scrutiny and is justified only by a

compelling state interest. . . . Otherwise, a statute will

stand if the classification bears a reasonable relation to

a legitimate state interest.’’ (Citations omitted, internal

quotation marks omitted.) Zapata v. Burns, 207 Conn.

496, 505, 542 A.2d 700 (1988).

The plaintiff asserts that our Supreme Court has

declared that any right contained in article first of the

constitution of Connecticut is fundamental and, therefore,

the strict scrutiny standard of review applies, and

the defendants’ burden is to demonstrate that the

repose section of the statute of limitations, § 52-584,

is necessary to advance a compelling state interest.

We disagree.

‘‘A right is fundamental for purposes of equal protection

analysis if it is explicitly or implicitly guaranteed

by the constitution.’’ Id., 505. The plaintiff’s claim does

not implicate any explicit or implicit fundamental

rights; thus, we employ the rational basis test in

reviewing it. ‘‘We have never held . . . that a constitutional

right of access to the courts automatically translates

each and every claim that a litigant may raise into

one invoking fundamental rights. It cannot seriously be

argued that a statutory entitlement to sue for wrongful

death of another is itself a ‘fundamental’ or ‘constitutional

right’. . . . The plaintiffs offer no reason why

this principle should not apply equally to actions for

personal injuries. In Ryszkiewsicz v. New Britain, [193

Conn. 589, 597–98, 479 A.2d 793 (1984)], we applied the

rational basis test to a statute despite the plaintiff’s

claim that it must face strict scrutiny because it

impinges on the fundamental right to recover damages

for injuries from tortious acts, citing the Connecticut

constitution, article first, § 10. We conclude, therefore,

that the standard by which to determine the equal rights

protection challenge to § 52-584a is the rational basis

test.’’ Zapata v. Burns, supra, 207 Conn. 507; see also

Keegan v. Aetna Life & Casualty Ins. Co., 42 Conn.

App. 803, 808–809, 682 A.2d 132 (1996).

‘‘The relevant inquiry is whether the classification

and disparate treatment inherent in the statute of repose

legislation bears a rational relationship to a legitimate

state end and is based on reasons related to the accomplishment

of that goal. . . . [T]he Fourteenth Amendment

does not deny to States the power to treat different

classes of persons in different ways. . . . The equal

protection clause of that amendment does, however,

deny to States the power to legislate that different treatment

be accorded to persons placed by a statute into

different classes on the basis of criteria wholly unrelated

to the objective of that statute. A classification

must be reasonable, not arbitrary, and must rest upon

some ground of difference having a fair and substantial

relation to the object of the legislation, so that all persons

(Citations omitted; internal quotation marks omitted.)

Daily v. New Britain Machine Co., 200 Conn. 562, 577–

78, 512 A.2d 893 (1986).

‘‘Every presumption is to be given in favor of the

constitutionality of the statute. . . . [C]ourts will

assume that the legislature intended to accomplish a

reasonable and rational result. . . . [L]egislative enactments

carry with them a strong presumption of constitutionality,

and . . . a party challenging the

constitutionality of a validly enacted statute bears the

heavy burden of proving the statute unconstitutional

beyond a reasonable doubt.’’ (Citations omitted; internal

quotation marks omitted.) Zapata v. Burns, supra,

207 Conn. 507–508.

Our analysis of this equal protection claim by the

plaintiff is the same as our analysis of his first constitutional

claim because the fundamental concern of both

claims is the alleged disparate treatment given to plaintiffs

who discover their injury after the three year limitations

period. ‘‘[I]n areas of social and economic policy,

a statutory classification that neither proceeds along

suspect lines nor infringes fundamental constitutional

rights must be upheld against equal protection challenge

if there is any reasonably conceivable state of

facts that could provide a rational basis for the classification.’’

(Internal quotation marks omitted.) Broadley

v. Board of Education, 229 Conn. 1, 8–9, 639 A.2d 502

(1994). Even if we assume arguendo that the two categories

of plaintiffs identified by the plaintiff are similarly

situated with respect to the statute, and relying on our

analysis of the plaintiff’s first constitutional claim, we

conclude that a rational basis does exist for that classification.

Although, it results in disparate treatment for

those who do not discover their injury within the three

year limitations period, the classification bears a reasonable

relationship to the legislative goal of the repose

section of the statute of limitations. Accordingly, § 52-

584 is constitutional as applied to the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 52-584 provides in relevant part: ‘‘No action to recover

damages for injury to the person . . . caused by negligence . . . or by

malpractice of a physician, surgeon . . . [or] hospital . . . shall be brought

but within two years from the date when the injury is first sustained or

discovered or in the exercise of reasonable care should have been discovered,

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.) This appeal concerns only the second part of § 52-584, known as

the repose section.

2 Article first, § 1, of the constitution of Connecticut provides: ‘‘All men

when they form a social compact, are equal in rights; and no man or set of

men are entitled to exclusive public emoluments or privileges from the community.’’

Article first, § 10, of the constitution of Connecticut provides: ‘‘All courts

shall be open, and every person, for an injury done to him in his person,

property or reputation, shall have remedy by due course of law, and right

and justice administered without sale, denial or delay.’’

Article first, § 20, of the constitution of Connecticut, as amended by article

twenty-one of the amendments, provides: ‘‘No person shall be denied the

equal protection of the law nor be subjected to segregation or discrimination

in the exercise or enjoyment of his or her civil or political rights because

of religion, race, color, ancestry, national origin, sex or physical or mental

disability.’’

Section one of the fourteenth amendment to the United States constitution

provides in relevant part that ‘‘[n]o state shall . . . deprive any person of

life, liberty or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.’’

3 The plaintiff also claimed that the court improperly permitted the hospital

to file a reply, on the day of the summary judgment hearing, objecting to

the plaintiff’s memorandum of law in opposition to the hospital’s summary

judgment motion. Although the court briefly referred to the reply in a footnote

of its memorandum of decision, it did not rely on the assertions in the

reply. In light of that fact and our plenary review rejecting the plaintiff’s

claims, we need not address that issue. Put another way, any impropriety

in accepting the reply memorandum was harmless.

4 The legal relationship between the hospital and Villa, an employee of

Associates, is unclear from the record. The hospital and Associates had an

agreement that Associates would provide a pathologist who would serve

as medical director of the hospital’s department of pathology. The hospital

was to employ all laboratory staff members; however, the director was

expected to be involved in the recruitment, selection and decisions regarding

the retention of such personnel. Salaries and benefits of Associates staff

were similar to those of the rest of the hospital’s employees. The hospital

provided all of the equipment, supplies and personnel for the pathology

department.

Associates maintained professional liability insurance for its pathologists.

The director was responsible for the proper functioning of all laboratory

sections, performance and reports of autopsies, interpretation of results in

both clinical and anatomical pathology, and served as a consultant, without

charge to the hospital, to the attending physicians. The agreement gave

Associates the sole right to render pathology services to or on behalf of the

hospital. In Associates’ reply to the hospital’s interrogatories, it denied that

the agreement was in effect at the time of the 1986 report.

5 The physician who performed the surgery, Julio Coelho, is not a party

to this action.

6 In the hospital’s brief and in oral arguments before this court, the hospital

conceded that Parker was one of its employees when she issued the corrected

report.

7 The plaintiff’s claims all are based on Associates’ misdiagnosis and he

does not differentiate between the defendants. Accordingly, we treat the

hospital and Associates as one.

8 General Statutes § 52-595 provides: ‘‘If any person, liable to an action

by another, fraudulently conceals from him the existence of the cause of

such action, such cause of action shall be deemed to accrue against such

person so liable therefor at the time when the person entitled to sue thereon

first discovers its existence.’’

9 General Statutes § 52-577 provides: ‘‘No action founded upon a tort shall

be brought but within three years from the date of the act or omission

complained of.’’

10 In Sanborn, we observed that the right to bring an action against an

attorney existed at common law and could be ‘‘traced back to the English

common law action of trespass on the case.’’ Id., 299. We further observed

that, ‘‘[a]t the time our constitution was adopted in 1818 . . . there was no

statute of limitations that restricted this type of action . . . . In May, 1819,

[however,] a committee was appointed to examine the statute laws, and to

recommend such alterations and provisions as should be necessary and

expedient to render the statutes conformable to the constitution. . . . In

1821, the committee reported to the legislature . . . . [Pursuant to the

report, the legislature enacted] § 4 of title 59, entitled ‘Limitations. An Act

for the Limitation of Civil Actions, and of Criminal Prosecutions,’ which

provided: ‘No action of trespass on the case shall be brought but within six

years next after the right of action shall accrue.’ ’’ (Citations omitted; internal

quotation marks omitted.) Id., 300.

In deciding the constitutionality of General Statutes § 52-577, we relied

on that language as evidence of the intent of the framers of the constitution,

citing State v. Joyner, 225 Conn. 450, 462, 625 A.2d 791 (1993), as support

for us to look to the laws enacted close to the time of the adoption of the

constitution of 1818 to enhance our understanding of the original intent of

the framers of the constitution. Sanborn v. Greenwald, supra, 39 Conn.

App. 301.

Conn. 371, 376, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed.

2d 29 (1975), aff’d on remand, 170 Conn. 155, 365 A.2d 393, cert. denied,

429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976), citing Baldwin v. Hale,

68 U.S. (1 Wall.) 223, 233, 17 L. Ed. 531 (1864).

12 In this case, the plaintiff did not argue for greater protection under the

state equal protection provision than under its federal counterpart. Where,

as here, ‘‘a party does not provide an independent analysis asserting the

existence of greater protection under the state constitutional provision than

its federal counterpart . . . the federal equal protection standard is considered

prevailing for the purposes of our review of both the state and federal

equal protection claims . . . .’’ Barton v. Ducci Electrical Contractors, Inc.,

248 Conn. 793, 812–13 n.15, 730 A.2d 1149 (1999).