Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Clarke v. Abate

Supreme Court of Vermont

August 9, 2013

Joseph ABATE, M.D.

Page 579

Michael I. Green and Jerome F. O'Neill of O'Neill Kellner & Green, Burlington, for Plaintiff-Appellant.

Ian P. Carleton and Eric S. Miller of Sheehey Furlong & Behm P.C., Burlington, for Defendant-Appellee.



¶ 1. In this civil action alleging sexual assault and battery and intentional or reckless infliction of emotional distress by a medical doctor during the course of his treatment of a high school female athlete, plaintiff appeals the superior court's grant of summary judgment to defendant based on the six-year statute of limitations applicable to childhood sexual abuse. The court's determination that the limitations period had run as a matter of law before plaintiff filed her lawsuit relied primarily on plaintiff's statements to police and her deposition testimony concerning her awareness of defendant's wrongful conduct at the time of the alleged assaults. We conclude that the court erred by determining the limitations accrual date as a matter of law rather than allowing the jury to weigh inferences from the factual record regarding plaintiff's state of mind and knowledge during the relevant period of time. Accordingly, we reverse the judgment and remand the matter for further proceedings consistent with this opinion.

¶ 2. The facts, viewed most favorably to plaintiff, are as follows. See Southwick v. City of Rutland, 2011 VT 53, ¶ 4, 190 Vt. 106, 35 A.3d 113 (" We review an award of summary judgment de novo, construing all doubts and inferences in favor of the nonmoving party." ). Plaintiff became a patient of defendant, who was an orthopedic surgeon and a professor at the University of Vermont medical school, in September 2000, a few months after her sixteenth birthday. Plaintiff had suffered a hip injury while training for her high school soccer season, and her pediatrician referred her to defendant, whose office notes indicate that she had groin pain near the pubic area.

¶ 3. After several visits, defendant told plaintiff that her parents did not need to accompany her to appointments, which eventually took place on a weekly basis, sometimes after hours without any record of them occurring. Defendant convinced plaintiff that he was the only doctor able and willing to treat her complicated medical problems. In late 2001, plaintiff began babysitting for defendant at her mother's suggestion, and, as a result, plaintiff developed a close relationship with defendant and his family.

¶ 4. Defendant performed two surgeries on plaintiff, the first in March 2001 and the second in July 2002. On at least three occasions during the course of his treatment of plaintiff, including one time before her first surgery and another time before her second surgery, defendant inserted his ungloved fingers into plaintiff's vagina. No one other than defendant and plaintiff was present on these occasions. Defendant insists that these vaginal penetrations were legitimate medical internal examinations conducted for diagnostic purposes. In fact, in his deposition testimony, he stated that he believed his intra-vaginal examinations of plaintiff had led him to the brink of discovering the source of her groin pain. Plaintiff's treatment with defendant ended in August 2002.

¶ 5. In June 2007, defendant was arrested and criminally charged with sexually assaulting another patient in a similar manner. Defendant's arrest was highly

Page 580

publicized, and the media reports describing his alleged conduct towards some patients— convincing parents not to attend office visits, seeing patients during after-hours visits, not wearing gloves during vaginal examinations, and holding himself out as the only doctor capable of addressing the patients' problems, for example— reminded plaintiff of her own experiences while being treated by defendant. Encouraged by her discovery that other women had come forward, plaintiff responded to a police request for former patients to provide any information related to the charges against defendant.

¶ 6. Plaintiff filed her civil suit against defendant on June 4, 2009. Defendant moved for summary judgment on the basis that the lawsuit was barred by the applicable statute of limitations. The trial court granted the motion, relying primarily on statements made by plaintiff to police in 2007 and her 2011 deposition testimony concerning her awareness of defendant's conduct at the time of the alleged assaults. The court acknowledged that juries generally determine statute-of-limitations accrual dates, but nevertheless concluded as a matter of law that plaintiff's cause of action began to accrue when she reached the age of majority because her " own statements indicate that she immediately recognized the tortious nature of [defendant's] conduct." More specifically, the court stated that plaintiff knew or should have known of the assaultive nature of defendant's conduct at the time it occurred because of: (1) the manner of the examinations in question; (2) the nonprofessional and inappropriate relationship that defendant fostered with her; and (3) " most importantly," her previous statements related to her awareness of defendant's wrongful conduct at the time of the suspect examinations.

¶ 7. On appeal, plaintiff argues that the trial court erred in granting defendant summary judgment by: (1) construing facts favorably to defendant rather than her; and (2) concluding that the statute of limitations could not be tolled based on a theory of fraudulent concealment.

¶ 8. The parties and the trial court agree that the applicable statute of limitations is found in 12 V.S.A. § 522(a), which states as follows:

A civil action brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within six years of the act alleged to have caused the injury or condition, or six years of the time the victim discovered that the injury or condition was caused by that act, whichever period expires later.

(Emphasis added.) The Legislature's insertion of the underlined clause indicates its adoption of the discovery rule in determining the limitations period for bringing actions concerning childhood sexual abuse. See Earle v. State, 170 Vt. 183, 192, 743 A.2d 1101, 1107 (1999) (" The Legislature's use of ‘ discover’ in § 522 builds upon the case law developed for physical injuries and the so-called ‘ discovery rule.’ " ); see also Soutiere v. Betzdearborn, Inc., 189 F.Supp.2d 183, 190 (D.Vt.2002) (noting that this Court in Earle " emphasized that it has attempted to unify the definition of accrual in statute of limitations cases involving personal injury" ).

¶ 9. Our discovery-rule case law construing the statute has established that " a cause does not accrue for physical injuries [" or condition" 12 V.S.A. § 522(a) ] until those injuries reasonably should be discovered." Earle, 170 Vt. at 192, 743 A.2d at 1108. Thus, " [t]he date of accrual under the statute of limitations seeks to identify the point at which a plaintiff should have discovered the basic elements

Page 581

of a cause of action: an injury caused by the negligence or breach of duty of a particular defendant." Id. at 193, 743 A.2d at 1108; see Lillicrap v. Martin, 156 Vt. 165, 175, 591 A.2d 41, 46 (1989) (noting " clear trend" among courts holding that limitations period does not begin to run " until the plaintiff has discovered his ‘ legal injury,’ such that the statute begins to run only when the plaintiff has or should have discovered both the injury and the fact that it may have been caused by the defendant's negligence or other breach of duty" ).

¶ 10. We have repeatedly and consistently emphasized that the question of when an injury reasonably should have been discovered " is one of fact to be determined by the jury." Lillicrap, 156 Vt. at 172, 591 A.2d at 44; see Turner v. Roman Catholic Diocese of Burlington, Vt., 2009 VT 101, ¶ 48, 186 Vt. 396, 987 A.2d 960 (citing Agency of Natural Res. v. Towns, 168 Vt. 449, 454, 724 A.2d 1022, 1025 (1998), for proposition that " the determination of when a claim accrues is generally a question reserved for the trier of fact" ); see also Riley v. Presnell, 409 Mass. 239, 565 N.E.2d 780, 787 (1991) (citing " majority of jurisdictions" holding " that factual disputes concerning when a plaintiff knew or should have known of his cause of action are to be resolved by the jury" ). Hence, the court rather than the jury may determine the accrual-date issue only " when there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party on that issue." Turner, 2009 VT 101, ¶ 48, 186 Vt. 396, 987 A.2d 960; see Lillicrap, 156 Vt. at 173, 591 A.2d at 45 (stating that " such questions are ‘ to be determined in all doubtful cases by the jury, because the public insists that its conduct be judged in part by the [person] in the street rather than by lawyers' " (quoting Prosser and Keeton on the Law of Torts § 37, at 237 (5th ed.1984))); cf. Rodrigue v. VALCO Enters., Inc., 169 Vt. 539, 540-41, 726 A.2d 61, 63-64 (1999) (mem.) (concluding as matter of law that limitations period had run with respect to plaintiff's dram shop action where there was evidence showing plaintiff knew from police investigation that driver who had rear-ended him had been drinking at defendant's establishment on evening of accident, that driver had been charged with careless and negligent operation due to driving while intoxicated, and that more details would be provided in police report, which turned out to strongly suggest that defendant had overserved driver intoxicating liquor that evening).

¶ 11. As noted, the trial court provided three reasons to support its conclusion that the limitations period began to run as a matter of law when plaintiff reached the age of majority shortly after the last of the alleged assaults occurred. The three reasons were all directed at the central question of whether plaintiff knew or should have known at the time of the alleged assaults that her longtime doctor's digital vaginal penetrations, done ostensibly in connection with the doctor's treatment for her ongoing hip/groin injuries, were assaultive in nature rather than legitimate medical examinations.

¶ 12. The trial court cited as the principal basis for its decision statements made by plaintiff in a 2007 police interview and a 2011 deposition concerning her awareness of possible wrongdoing on defendant's part with respect to the vaginal examinations. In her 2007 interview with police, which occurred in the context of an ongoing criminal investigation against defendant, she told police about the examinations that caused her concern. The court found statements in the following dialog supportive of its decision:

Page 582

Q: [D]uring your visits with [defendant] was there ever anything that concerned you?
A: Um, yeah, definitely.... I mean just like his— his facial expressions and he would like perspire a lot and while he was examining me and that's all I can like remember is like just his facial expressions just like he scared me.... Like he was enjoying it ....
This is so— it's so hard because you're like— when you're in there, you're— you're like on your, you know, you're on your guard and you're like— like this— this should not be happening and—
Q: And what was he— how was he touching you? Well, what was he doing? Like when he was doing this, what is he saying to you?
A: Nothing. It's all like facial— facial expressions and—
Q: I mean— but how is he touching you though? I mean how— how—
A: Well, I mean I guess in a way someone would examine you but I don't think it got like— I just don't know.... I don't— it was— I felt like there was a difference. There was definitely like a line where it went from, you know, him really examining me to like him finding pleasure out of it.
Q: Well, talk to me about that. I don't understand what you mean.
A: Um, just things like— it was just like the aura like just the feeling in the room the— his facial expressions changed, um, like he was kind of like— like nervous in a way, um, like he was perspiring and definitely— it was a definite feeling. It was different. It was definitely different.
Q: Different than what you had experienced before?
A: Right and then like him examining ... versus him kind of taking it to the next level where he— it really wasn't examining anymore. It was more like him just finding— it ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.