Dimmock v. Lawrence & Memorial Hospital, Inc.
Dimmock v. Lawrence & Memorial Hospital, Inc.
Opinion of the Court
Opinion
In this medical malpractice action, the plaintiff, Susan Dimmock, appeals from the summary judgment of the trial court rendered in favor of the defendants, Patrick F. Doherty, Frank W. Maletz, and the medical practice groups to which they respectively belong, Neurological Group, P.C., and Thames River Orthopaedic Group, LLC.
The record reveals the following undisputed facts and procedural history. On or about November 9, 2000,
The plaintiff was readmitted to the hospital on March, 4, 2001, and remained there until March 16, 2001, because of an abscess at the postoperative wound site. During that time, Doherty performed a third surgery to irrigate and drain the infected lumbar wound site. On or about March 20, 2001, the plaintiff was readmitted to the hospital for a third time, with the same symptoms that she had experienced earlier that month—drainage from the wound site and back pain, as well as an elevated temperature. She was diagnosed with a drug resistant infection at the wound site, infection of the lumbar vertebrae and other conditions. The plaintiff remained hospitalized until March 29, 2001, and continued a
On or about March 5, 2003, the plaintiff commenced this malpractice action against the defendants and the hospital.
On March 4, 2005, the defendants filed a motion to preclude the plaintiff from disclosing expert witnesses, or in the alternative, to compel disclosure, on the ground that she had failed to meet the December 31, 2004 disclosure deadline under a court scheduling order. The plaintiff filed a request to extend the disclosure date until September 15, 2005, which the court, Quinn, J., granted. On September 15, 2005, the plaintiff filed a written disclosure of six expert witnesses. Only one of those witnesses, Sanford H. Davne, a physician, was to offer an opinion on the standard of care relative
Thereafter, Doherty and Neurological Group, P.C., filed a motion to preclude Davne’s testimony, claiming that his opinion was unrelated to the allegations in the plaintiffs complaint that the defendants had been negligent in causing, diagnosing and/or treating the plaintiffs infection. The plaintiff objected to the motion, contending that Davne’s opinion elaborated on claims in the complaint and that the court should delay ruling on the motion until after the defendants had deposed Davne. The plaintiff simultaneously sought leave to amend her complaint to incorporate Davne’s opinions regarding the use of instrumentation. The defendants objected to the request to amend the complaint on the ground that such allegations would add a new claim that was barred by the statute of limitations and, alternatively, on the ground that allowing the amendment would be prejudicial to them.
By agreement of the parties, the trial court, Beach, J., first ruled on the request to amend the complaint, because a ruling favorable to the plaintiff would eliminate the objection regarding Davne’s testimony. The court noted that it was “deciding the objections not on the usual criteria for deciding whether to allow amend
The plaintiff claims that the trial court improperly: denied her request to amend her complaint; precluded her expert witness on standard of care and causation; and rendered summary judgment on the ground that the plaintiff lacked an expert witness to testify regarding standard of care and causation. We address each claim in turn.
I
The plaintiff claims that the trial court determined that her amended complaint sought to add allegations that did not relate back to those in the operative complaint on the basis of an unduly restrictive view of the pleadings generally and a misconception that her negligence allegations were limited to the cause and effect of the infection. The plaintiff contends a broader view of the allegations is supported by the fact that the operative complaint is an “amalgamation” of two earlier complaints from cases alleging negligence on the basis of two different theories—one relating to the infection, and the other relating to her back injury. See footnote 2 of this opinion. We conclude that, although the trial
Under our case law, it is well settled that “a party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same. ... If a new cause of action is alleged in an amended complaint ... it will [speak] as of the date when it was filed. ... A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. ... A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action. . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but whe[n] an entirely new and different factual situation is presented, a new and different cause of action is stated.” (Citations omitted; internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 129-30, 788 A.2d 83 (2002).
Before examining the pertinent allegations of the operative complaint, we note that the parties disagree about whether this court reviews for an abuse of discretion or de novo a trial court’s decision on whether amendments to a complaint relate back for purposes of the statute of limitations. This court previously has not addressed this issue. Although a few cases have indicated that an abuse of discretion standard applies; see Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 240, 429 A.2d 486 (1980); Jacob v. Dometic Origo
An abuse of discretion standard would be consistent with the general rule that “[t]he trial court has wide discretion in granting or denying amendments before, during, or after trial.” (Internal quotation marks omitted.) Leone v. Knighton, 196 Conn. 494, 496, 493 A.2d 887 (1985); Antonofsky v. Goldberg, 144 Conn. 594, 597-98, 136 A.2d 338 (1957); see also Bielaska v. Waterford, 196 Conn. 151, 154, 491 A.2d 1071 (1985) (recognizing that “[a] trial judge has a unique vantage point that entitles his decision to great weight on appeal” when considering whether to permit plaintiffs to amend complaint to conform with proof at trial in light of nature of amendments and fair notice to defendant).
We begin with the operative complaint. The first count, which was against the hospital; see footnote 1 of this opinion; set forth all of the factual allegations that were incorporated in the later counts against the defendants. The specific acts of negligence alleged in count one related solely to the cause and treatment of the plaintiffs infection. In counts two through five, one as to each defendant, the plaintiff set forth additional allegations of negligence common to these defendants in paragraph thirty-four. It is undisputed that paragraph 34 (a) through (n) related solely to infection. Paragraph 34 (o) through (y) then set forth the following allegations of negligence, with emphasis on those relied on by the plaintiff as the basis for the relation back:
“o. In that [the defendants] failed to establish a proper patient care plan for the [p]laintiff
“r. In that [the defendants] failed to adequately and properly care for, treat, monitor, diagnose and supervise the plaintiff for problems with her back and post operative care-,
“s. In that [the defendants] failed to adequately and properly assess and inform the plaintiff of the risks involved in the surgery-,
“t. In that [the defendants] failed to properly diagnose the sy[n]oviai cyst and the slipped disc at L5-S1;
“u. In that [the defendants] failed to properly remove the disc at L5-S1;
“v. In that [the defendants] failed to adequately and properly read, interpret and report the flexion-extension
“w. In that [the defendants] failed to perform a timely discectomy at L5-S1;
“x. In that [the defendants] performed a spinal fusion when there was no spinal instability;
“y. In that [the defendants] improperly closed the wound as a result of that surgery.” (Emphasis added.)
Paragraph thirty-four of the plaintiffs proposed amended complaint consolidated the allegations regarding infection, deleted the aforementioned eight allegations and substituted the following allegations:
“j. The [d]efendant[s] failed to adequately inform [the plaintiff] of all surgical options;
“l. In that the [d]efendant[s] failed to perform a spinal fusion with instrumentation;
“m. In that the [d]efendant[s] failed to perform a spinal fusion with instrumentation in light of the [plaintiff’s medical history;
“n. In that the [d]efendant[s] failed to adequately monitor the [p]laintiffs ongoing back condition after the initial surgery and make the necessary recommendations for additional care and treatment, including additional attempts at surgical repair.”
When comparing these pleadings, we are mindful that, “[i]n Connecticut, we long have eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modem trend, which is followed in Connecticut, is to constme pleadings broadly and realistically, rather than narrowly and technically. . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. . . . Our reading of pleadings in a manner that advances substantial justice means that a pleading must be constmed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension.” (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 778.
Undoubtedly, the overwhelming thrust of the operative complaint related to the plaintiffs infection. All of the factual allegations were set forth in the count as to the hospital, against which the plaintiff claimed negli
In resolving potential ambiguity as to the intended meaning of these allegations, we agree with the plaintiff that the genealogy of these claims supports her contention that her complaint was not limited solely to infection. The record reflects that the plaintiff originally had filed two actions relating to her back surgery. See footnote 2 of this opinion. The one at issue in the present case, filed by her appellate counsel, David W. Bush, against the defendants and the hospital, had alleged negligence in the cause and treatment of her infection (Bush complaint). Another complaint, filed by different counsel, Gary J. Greene, against Doherty, Neurological Group, P.C., and Maietz, and not the hospital, had alleged negligence principally with regard to their diagnosis and treatment of the plaintiffs back condition (presurgery, the surgeries themselves and postsurgery), but also with regard to the infection (Greene complaint). The plaintiff thereafter filed a motion to consolidate the cases. The defendants filed an objection to the consolidation and a motion to dismiss the Greene
Nonetheless, we disagree with the plaintiff that the new allegations relate back to those in the operative complaint. We begin with the plaintiffs contention that the new allegations relate back to paragraph 34 (r) and (s), alleging failure “to adequately and properly care for, treat, monitor, diagnose and supervise the plaintiff for problems with her back and post operative care,” and failure “to adequately and properly assess and inform the plaintiff of the risks involved in the surgery . . . .” Those broad allegations must be read contextually “to give effect to the pleading with reference to the general theory upon which [the complaint] proceeded . . . .” (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 778. As we previously have noted, the theories upon which the plaintiff proceeded were that the defendants: had performed the surgery in an unsterile environment; had failed to perform a necessary procedure (dissection of the disc at L5-S1); and had performed an unnecessary procedure (spinal fusion when there was no spinal instability). The allegations in the amended complaint, however, do not relate to any of those theories. Indeed, they directly contradict one of those theories. Paragraph 34 (x) of the operative complaint alleges that the defendant should not have performed a spinal fusion because there was no spinal instability. Paragraph 34 (I) and (m) of the amended complaint posits the theory that the defendants should have performed a spinal fusion, but that they did not use the proper material, because the plaintiffs medical history created the risk of greater spinal instability. The fact that the plaintiff
Although this court has found that allegations that assert an alternative basis for liability arising from the same facts can relate back to the original complaint; see, e.g., Gurliacci v. Mayer, supra, 218 Conn. 549 (“new allegations did not inject two different sets of circumstances and depend on different facts . . . but rather amplified and expanded upon the previous allegations by setting forth alternative theories of liability”); we are unaware of any case in which this court has held that new allegations that replace and directly contradict those in the operative complaint have been deemed to amplify, and hence relate back, to those in the operative complaint. Compare Alswanger v. Smego, supra, 257 Conn. 61 (allegation of lack of informed consent regarding resident’s participation in surgery did not relate back to allegation that defendants had failed to disclose all material risks in connection with plaintiffs surgery, care and treatment), Sharp v. Mitchell, supra, 209 Conn. 73 (allegations of negligent construction and design of underground fuel storage area did not relate back to allegation that defendant was negligent in ordering employees to enter area), Keenan v. Yale New Haven Hospital, 167 Conn. 284, 285-86, 355 A.2d 253 (1974) (allegation of lack of informed consent to surgery did not relate back to allegation of negligence in performing surgery), Sandvig v. A. Dubreuil & Sons, Inc., 68 Conn. App. 79, 86, 789 A.2d 1012 (2002) (allegation that defendant negligently damaged floor tiles when it installed handicap access ramp did not relate back to allegation that defendant negligently installed tile floor
The plaintiff also relies on paragraph 34 (o) in the operative complaint, alleging that the defendants had been negligent in that they “failed to establish a proper patient care plan for the [pjlaintiff . ...” In addition to the reasons discussed previously herein, the genealogy of this allegation demonstrates that it relates solely
II
We next turn to the plaintiffs claim that the trial court improperly precluded Davne’s testimony as outside the scope of the operative complaint. Related to her claim in part I of this opinion, the plaintiff contends that the trial court improperly restricted the scope of relevant expert testimony to whether the defendants had breached the standard of care in preventing, assessing and treating the plaintiffs infection. She further contends that Davne’s opinion supported her allegation that the defendants had not established, nor reviewed with her, a proper care plan. For the reasons stated in
“It is well established that [t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Concerning expert testimony specifically, the trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Citation omitted; emphasis added; internal quotation marks omitted.) Prentice v. Dalco Electric, Inc., 280 Conn. 336, 342, 907 A.2d 1204 (2006), cert. denied, 549 U.S. 1266, 127 S. Ct. 1494, 167 L. Ed. 2d 230 (2007).
According to the plaintiffs disclosure, Davne’s opinion was that the defendants had deviated from the standard of care by failing to inform the plaintiff of all of her surgical options, including spinal fusion with the use
Ill
Last, we turn to the plaintiffs claim that the trial court improperly rendered summary judgment in favor of the defendants because she lacked an expert witness to testify regarding the standard of care and causation. The plaintiff contends that no expert testimony was necessary because gross negligence or ordinary negligence may be inferred from the facts in evidence. She also contends that she can prevail without expert testimony under the theory of lost chance. We disagree.
“The classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged negligence occurred. . . . [T]he relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.” (Citations omitted; internal quotation marks omitted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254, 811 A.2d 1266 (2002). It is clear, after applying this three part standard to the operative complaint, that the plaintiffs claim sounds in medical malpractice, not negligence.
Neither the cause and effect of an infection after spinal surgery nor the proper surgical treatment for a synovial cyst on the spine are matters within the common knowledge of laypersons. Moreover, it is clear that the plaintiffs allegations of negligence do not rise to the level of the kind of “obvious and egregious violation of an established standard of care”; id., 568-69; that Connecticut courts have considered to be gross negligence, requiring no expert testimony. Cf. Puro v. Henry, 188 Conn. 301, 308, 449 A.2d 176 (1982) (needle found in patient after hernia operation); Console v. Nickou, 156 Conn. 268, 274-75, 240 A.2d 895 (1968) (needle left in patient after delivery of child); Allen v. Giuliano, 144 Conn. 573, 575, 135 A.2d 904 (1957) (lacerations to
Finally, even if we were to assume arguendo that the plaintiffs complaint may be construed to allege negligence under a “lost chance” theory, we conclude that she still was not entitled to survive summary judgment. Under that theory, the plaintiff must prove “that the defendant[s’] negligent acts decreased the [plaintiffs] chance for successful treatment . . . .” Boone v. William W. Backus Hospital, supra, 272 Conn. 573-74. Pursuit of recovery under this theory does not negate the plaintiffs obligation to provide expert testimony on the requisite standard of care and causation unless the allegations meet the exceptions otherwise applicable to excuse the plaintiff from meeting this obligation. See Marshall v. Hartford Hospital, 65 Conn. App. 738, 754, 783 A.2d 1085 (“In this [lost chance] case, no exceptions exist to excuse the plaintiff from producing expert medical testimony to prove her case. The alleged negligence was not gross, the medical condition was not obvious, and the injury and the defendant physician’s connection with the injury was not obvious enough to allow a lay juror to form a reasonable belief as to the negligence of the defendant physician.”), cert. denied, 258 Conn. 938, 786 A.2d 425 (2001). For the foregoing reasons, therefore, the plaintiff also could not prevail under a
The judgment is affirmed.
In this opinion ROGERS, C. J., and VERTEFEUILLE and ZARELLA, Js., concurred.
Lawrence and Memorial Hospital, Inc. (hospital), the hospital where the plaintiff received her initial surgery and postsurgical treatment, also was named as a defendant in this action, but the plaintiff withdrew her claim against the hospital prior to the trial court’s ruling on the defendants’ motions for summary judgment. For purposes of clarity as to the claims on appeal, references to the defendants do not include the hospital.
On March 5, 2003, the plaintiff, through her current appellate counsel, David W. Bush, filed the present action against the defendants and the hospital, with a return date of March 11, 2003. On March 11, 2003, the plaintiff, through a different attorney, filed a second action naming Doherty, Neurological Group, P.C., and Maletz as the defendants. The plaintiff filed a motion to consolidate the cases, to which the defendants objected. The defendants filed a motion to dismiss the second case, to which the plaintiff objected. The record reflects no court action on either motion. According to Bush’s affidavit filed in opposition to the defendants’ motions for summary judgment, on or about July 7,2003, the court thereafter entered an agreement by the parties whereby the plaintiff would file an amended complaint to incorporate allegations from each case into one complaint. The record reflects that the plaintiff did file an amended complaint on August 4, 2003, which is the operative complaint in this case.
The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeals to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. For reasons that are not apparent, the plaintiff filed two appeals, one appealing the judgment in favor of Doherty and Neurological Group, P.C., and another appealing the judgment in favor of Maletz and Thames River Orthopaedic Group, LLC. The plaintiffs briefs as to each appeal appear to be identical, and we therefore consider the appeals as one.
In exercising its discretion in granting or denying a request to amend a complaint during or after trial, the trial court has its unique vantage point in part because it is interpreting the plaintiffs allegations not in a vacuum, but in the context of the development of the proceedings and the parties’ understanding of the meaning of those allegations. Similarly, prior to trial, in light of discovery, pretrial motions or conferences, a trial court may have a different context for the allegations than what is evident to an appellate court. Indeed, as we discuss subsequently in this opinion, the plaintiff expressly relies on the procedural posture of the case to give context to the allegations in the operative complaint.
Flexion is defined as the “bending of the spine so that the concavity of the curve looks forward.” Stedman’s Medical Dictionary (28th Ed. 2006). Extension is “the opposite or antagonistic movement of flexion.” Id.
“Under the prior pending action doctrine, [t]he pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction.” (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 409, 876 A.2d 522 (2005).
In her reply to the defendants’ obj ection to the consolidation, the plaintiff stated: “A review of the pleadings in each of the respective actions will reveal that the actions are not virtually alike, but do arise out of the same medical care and treatment. In the [Bush complaint], the primary claim against [Doherty] relates to the [plaintiffs obtaining and suffering from an infectious condition immediately after the surgery of November 9, 2000. [The Greene complaint] sets forth claims related to the diagnosis of the [plaintiff’s underlying back condition, the recommendation for surgical intervention, and the failure to perform surgery approximately at L5-S1. It is anticipated that there is going to be separate and distinct expert testimony related to each case.”
The only substantive difference between the allegations set forth in the Greene complaint and those incorporated into the operative complaint was the omission of the following emphasized portion of one of the allegations: “Improperly closed the wound as a result of the surgery, did a procedure and used instruments that led to an infection." (Emphasis added.) Presumably this emphasized language was deemed redundant with the negligence allegations in the Bush complaint relating to the cause and effect of the infection. Similarly, although the defendants correctly pointed out at oral
The plaintiffs reliance on Wagner v. Clark Equipment Co., supra, 259 Conn. 114, is misplaced. In Wagner, the named plaintiff had brought a product liability action against the manufacturer and distributor of a forklift after the forklift backed up and struck the plaintiff from behind, knocked him to the ground and ran over his left foot, causing injuries that eventually resulted in the amputation of the plaintiffs left leg below the knee. Id., 117-18. The plaintiff initially had alleged several defects in the forklift’s design, including that the forklift lacked a backup alarm that emitted a sound that was sufficiently distinct to warn the plaintiff. Id., 119. This court concluded that a new allegation that the forklift’s design was defective in that the backup alarm would not sound when the forklift was engaged in reverse related back to those in the operative complaint. Id., 130. Although we broadly characterized the operative complaint’s theory as alleging “an injury caused by a defective forklift”; id.; unlike the present case, the new allegation was consistent with the original allegation in that both claims were based on the same fact—that the forklift lacked a backup alarm that would have warned the plaintiff, either because it was not sufficiently audible or because it became disengaged during certain maneuvers. Indeed, evidence as to whether the backup alarm was sufficiently audible presumably would have encompassed evidence that the alarm actually functioned while the forklift was in reverse.
The plaintiff contends in her brief to this court that “subparagraphs (a) through (n) [of paragraph thirty-four] are concerned with the problem of infection raised in Attorney Bush’s original complaint, whereas the allegations in subparagraphs (o) through (y) incoiporate the allegations of Attorney Greene’s original complaint.” Reference to the Bush and Greene complaints reveals that subparagraphs (r) through (y) are the only ones that originated in the Greene complaint.
The disclosure stated: “[Davne] will further testify that the doctors failed to adequately monitor [the plaintiffs] ongoing back condition post surgery and make the necessary recommendations for additional care and treatment, including additional attempts at surgical repair.” Davne stated in his deposition that he did not intend to offer any testimony regarding postsurgical treatment, either with respect to adequate monitoring of the plaintiffs back condition or with respect to recommendations for additional care and treatment. Davne stated that his opinion was limited to preoperative treatment and the surgery itself, but was unrelated to the plaintiffs infection.
Davne explained in his deposition that his opinion was that instrumentation generally should be used in a spinal fusion to ensure greater stability, and that the need for such stability was greater in the plaintiffs case because “she was obese and a smoker,” because she had “abnormal movement on her flexion/extension views at the L5-S1 level” and because removal of the synovial cyst would have increased further the instability at that site.
In the hearing before the trial court on the plaintiffs request to amend her complaint, the plaintiffs counsel represented to the court that “[i]t was decided not to use an infection expert,” and no expert regarding the infection was listed in the plaintiffs disclosure. The plaintiff does not claim in her appeal that no expert was needed to prove her infection related claim.
Dissenting Opinion
dissenting. I agree with the majority that the trial court improperly viewed the complaint of the plaintiff, Susan Dimmock, as limited to allegations that expressly or implicitly concerned infection. I also agree with the majority’s reasoning in discussing why de novo review is appropriate in this case. Although the majority takes no position on this issue, I believe that a de novo standard of review should be applied in this case. See Boone v. William W. Backus Hospital, 272 Conn. 551, 573 n.12, 864 A.2d 1 (2005) (“[t]he interpretation of pleadings is always a question of law for the court and . . . our interpretation of the pleadings therefore is plenary” [internal quotation marks omitted]). I further agree fully that “[i]n Connecticut, we long have eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties.” (Internal quotation marks omitted.) Deming v. Nation
The crucial issue in this appeal is whether the plaintiffs proposed allegations concerning the defendants’
The maj ority opinion accurately traces the allegations from the two original complaints into the operative complaint. See footnote 2 and part I of the majority opinion (explaining that plaintiff originally filed two complaints through two attorneys—David W. Bush and Gary J. Greene [Greene complaint]). In essence, the plaintiff relies principally on the allegations in paragraph 34 (r) and (s) of the operative complaint as the basis for the relation back of the new allegations in the proposed amended complaint. Those subparagraphs clearly had their origin in the Greene complaint, which did not concern infection. Paragraph thirty-four of the plaintiffs proposed amended complaint proposed the following new allegations:
“j. The [d]efendant[s] failed to adequately inform [the plaintiff] of all surgical options;
“k. In that the [defendants failed to adequately inform [the plaintiff] of all the surgical options in light of her history of smoking;
“m. In that the [d]efendant[s] failed to perform a spinal fusion with instrumentation in light of the [plaintiffs medical history;
“n. In that the [d]efendant[s] failed to adequately monitor the [p]laintiffs ongoing back condition after the initial surgery and make the necessary recommendations for additional care and treatment, including additional attempts at surgical repair.”
The plaintiff argues that the new allegations relate back to paragraph 34 (r) and (s) of the operative complaint, which alleged failure “to adequately and properly care for, treat, monitor, diagnose and supervise the plaintiff for problems with her back and post operative care” and failure “to adequately and properly assess and inform the plaintiff of the risks involved in the surgery . . . .” Attempting to read these allegations “contextually,” the majority concludes that the operative allegations do not support the new allegations. The majority particularly expresses concern that the new allegations of an improperly performed spinal fusion “contradict” the earlier allegation of a spinal fusion that was alleged to have been performed improperly because there was no spinal instability.
The majority affirms the trial court’s rejection of the proposed amendments because they are contradictory and represent a new theory of negligence. The majority reasons that, while our case law supports the pleading of alternative theories of negligence in general, it does not support the pleading of alternative theories that contradict previously pleaded theories. I disagree with this reasoning. Whether allegations contradict earlier allegations is not the principal inquiry. It is fair to say that all revised allegations involve some new facts and that all new allegations alter to some extent the eviden
The relation back doctrine has been explained by this court as follows: “A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. ... A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action. ... A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action. . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated.” (Citations omitted; internal quotation marks omitted.) Gurliacci v. Mayer, supra, 218 Conn. 546-47. “Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving ‘the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . . .’ ” Barrett v. Dan-
In Gurliacci, we stated that “[w]e have previously recognized that our relation back doctrine is akin to rule 15 (c) of the Federal Rules of Civil Procedure . . . .” (Internal quotation marks omitted.) Gurliacci v. Mayer, supra, 218 Conn. 547. Rule 15 (c) (1) (B) provides in pertinent part that “[a]n amendment to a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading . . . As we recognized in Gurliacci, “[t]he policy behind rule 15 (c) is that a party, once notified of litigation based upon a particular transaction or occurrence, has been provided with all the notice that statutes of limitations are intended to afford. . . . Because rule 15 provides that an amendment relates back where the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims, is fully served.” (Citations omitted; internal quotation marks omitted.) Gurliacci v. Mayer, supra, 547-48.
The majority opinion cites Gurliacci as authority for the proposition that allegations that assert an alternative basis for liability arising from the same facts can relate back to the original complaint. The reasoning of Gurliacci provides strong support for the plaintiffs position in this case. In Gurliacci, the plaintiffs original complaint alleged that the defendant had acted negligently in operating his automobile while he was intoxicated. Id., 546. The proposed amendment sought to add allegations that the defendant had acted either wilfully, wantonly or maliciously, or outside the scope of his employment. Id. In allowing the amendment under the
All potential amendments to a complaint require that there be some new evidence presented. Thus, in Gurliacci, the amendment to the complaint would have required new evidence as to whether the defendant was acting either wilfully, wantonly or maliciously. Further, the amendment to the complaint would have required evidence as to whether the defendant was operating the motor vehicle outside the scope of his employment. Id. The fact that new evidence would be required in Gurliacci was not the determining factor as to whether the amendment would relate back to the original complaint. The amendment was allowed in Gurliacci in part because the defendant had adequate notice that a claim was being asserted against him arising out of the alleged motor vehicle accident and the amended complaint reiterated the negligence claim based on his operation of a motor vehicle. Id.
The Gurliacci court correctly focused on the factual situation rather than on the potentially contradictory nature of the original and new allegations. The new allegations, in fact, could have been viewed as inconsistent or even contradictory, had the nature of the allegations been the appropriate focus of the court’s attention. The original allegations involved negligence within the
In the present case, the defendants had adequate notice that a claim was being asserted against them based on a claim of negligence in the performance of medical services culminating in a spinal fusion at L5-Sl. They also had adequate notice that the claim concerned the condition of spinal stability following the surgery. While the new allegations did present a different configuration of the factual situation, they did not negate “the identity of the cause of action.” (Internal quotation marks omitted.) Id., 549. The defendants had fair notice that the plaintiffs claim of negligence concerned the decision to undertake, manner of performance and results of the spinal fusion at L5-S1.
The plaintiff in this case relied on Wagner v. Clark Equipment Co., 259 Conn. 114, 788 A.2d 83 (2002), which, in my view, offers persuasive support for the plaintiffs position. The majority dismisses the impor
For the foregoing reasons, I conclude that the trial court improperly determined that the amended complaint presented claims that did not relate back to those in the operative complaint and, therefore, was time barred. I would reverse the summary judgment rendered by the trial court. Accordingly, I would reverse the judgment as to the other two issues raised on appeal and remand the case to the trial court for further proceedings, including an order granting the motion to amend the complaint. This disposition would represent a broad and realistic interpretation of the pleadings that would promote substantial justice in this case.
The defendants in this case are Patrick F. Doherty and Frank M. Maletz, and the medical practice groups to which they respectively belong, Neurological Group, P.C. and Thames River Orthopedic Group, LLC. Although Lawrence and Memorial Hospital, Inc., also was named as a defendant, the plaintiff withdrew her claim against the hospital, and references to the defendants do not include the hospital.
In Sharp, we concluded that the statute of limitations barred the defendant’s amended complaint alleging wrongful death based on negligent design and construction because it did not relate back to the defendant’s original complaint alleging wrongful death based on negligent supervision because “[t]hese complaints involve two different sets of circumstances and depend on different facts to prove or disprove the allegations of a different basis of liability.” Sharp v. Mitchell, supra, 209 Conn. 73.
The majority cites Alswanger v. Smego, 257 Conn. 58, 61, 776 A.2d 444 (2001), and Keenan v. Yale New Haven Hospital, 167 Conn. 284, 285-86, 355 A.2d 253 (1974), to support the statement: “we are unaware of any case in which this court has held that new allegations that replace and directly contradict those in the operative complaint have been deemed to amplify, and hence relate back, to those in the operative complaint.” (Emphasis in original.) A close reading of Alswanger and Keenan, however, indicates that we examine the factual underpinning of the proposed cause of action in order to determine whether the proposed cause of action relates back to the original cause of action.
Indeed, in Alswanger, we concluded: “[i]n the present case, we are faced with an amended complaint, filed after the statute of limitations had expired, alleging an act of negligence based on a different set of facts from that alleged in the original complaint.” Alswanger v. Smego, supra, 257 Conn. 66. In Keenan, we concluded: “[a]cts amounting to negligence and acts amounting to assault and battery, not related to lack of due care, do not constitute a single group of facts. They are separate and distinct. It is clear that the count alleging an assault, as made more specific, raises a cause of action separate and distinct from the negligence originally pleaded.” Keenan v. Yale New Haven Hospital, supra, 167 Conn. 286. These cases, as well as Gurliacci v. Mayer, supra, 218 Conn. 531, Wagner v. Clark Equipment Co., 259 Conn. 114, 788 A.2d 83 (2002), and Sharp v. Mitchell, supra, 209 Conn. 59, which I discuss in the text of this dissenting opinion, indicate that whether the new cause of action contradicts the original cause of action is not relevant to the determination of whether the new cause of action relates back to the original cause of action.
Reference
- Full Case Name
- Susan Dimmock v. Lawrence and Memorial Hospital, Inc., Et Al.
- Cited By
- 28 cases
- Status
- Published