DONALD BRIERE ET AL.
GREATER HARTFORD ORTHOPEDIC GROUP, P.C., ET AL
Argued February 3, 2015
Action to recover damages for, inter alia, medical malpractice, and for other relief, brought to the Superior Court in the judicial district of Middlesex, where the court, Holzberg, J., sustained the plaintiffs' objection to the defendants' request to revise; thereafter, the court, Aurigemma, J., sustained the defendants' objection to the plaintiffs' request for leave to file an amended complaint; subsequently, the court, Aurigemma, J., granted the plaintiffs' motion to reargue and for reconsideration, but denied the relief requested therein; thereafter, the court, Domnarski, J., denied in part the defendants' motion for summary judgment; subsequently, the court, Domnarski, J., granted the defendants' motion for reconsideration and vacated the summary judgment order pursuant to the parties' stipulation; thereafter, the court, Aurigemma, J., denied the plaintiffs' second request for leave to file an amended complaint and granted the defendants' motion for summary judgment, and rendered judgment thereon, from which the plaintiffs appealed to this court.
The plaintiffs, D and his wife, sought to recover damages from the defendants, an orthopedic surgeon, K, and his medical group, for medical malpractice in connection with surgery that K performed on D's spine. During the surgery, a monitor indicated an abnormal signal in D's nerve function and K aborted the surgery. D sustained a spinal cord injury, which resulted in quadriparesis. The plaintiffs commenced this action and alleged, inter alia, that K was negligent in that he failed to " perform a safe and effective operation" and had improperly positioned D's head and neck, or had improperly secured D to the operating table, resulting in the injury to his spinal cord. Thereafter, the plaintiffs disclosed an expert witness who opined that D's injury was more likely than not the result of a negligently placed medial retractor blade during the surgery. The plaintiffs sought leave to file an amended complaint to add allegations with respect to the retractor blade, which the trial court denied. The court concluded that the allegations in the amended complaint did not relate back to the original complaint because they related to a completely different type of negligence with different underlying facts, and, accordingly, were time barred by the limitation period contained in the statute (§ 52-584) applicable to medical malpractice actions. The defendants then moved for summary judgment on the ground that the plaintiffs could not produce expert testimony that would support the theory of negligence alleged in their original complaint. The trial court granted the motion for summary judgment, and the plaintiffs appealed to this court. Held that the trial court improperly rendered summary judgment for the defendants, that court having improperly concluded that the allegations of the proposed amended complaint did not relate back to the original complaint and were thus barred by the statute of limitations: under the circumstances of this case, the trial court took too narrow a view of the allegations contained in the original complaint, namely, that K " failed to perform a safe and effective operation," because the general allegations of the original complaint put the defendants on notice of the plaintiffs' theory of the case, the structure of the original complaint illustrated that the allegations pertaining to the positioning of the plaintiff's neck and head were not meant to supersede the overarching allegation that K had performed the surgery in a negligent manner, and the fact that the plaintiffs pleaded a count sounding in res ipsa loquitur indicated some lack of certitude as to the precise mechanism that led to D's injury and also put the defendants on notice of the underlying fact that, during the surgery, K had sole control over the D's body and that as a consequence of K's negligent conduct, D was injured; moreover, the defendants were given more than fair notice of the allegations with respect to the retractor blade because the plaintiff timely disclosed the expert witness, who the defendants deposed, and the plaintiffs filed their request for leave to amend ten months prior to the scheduled date for jury selection; furthermore, the allegations in the proposed amended complaint did not contradict the allegations in the original complaint, as the original complaint alleged that K performed the surgery in a negligent manner and the proposed amended complaint merely specified the manner in which K was allegedly negligent, which was progressively revealed through the ongoing process of discovery, and this court concluded that a better reading of the pleadings was a broad but pragmatic one that promoted substantial justice.
Ron Murphy, for the appellants (plaintiffs).
Lorinda S. Coon, with whom, on the brief, was John W. Sitarz, for the appellees (defendants).
Lavine, Prescott and Schaller, Js.
[158 Conn.App. 68] The principal issue in this medical malpractice appeal is whether allegations stated in an amended complaint related back to the original complaint and, therefore, were timely under General Statutes § 52-584. The plaintiff Donald Briere appeals from the judgment of the trial court granting summary judgment in favor of the defendants, David Kruger, an orthopedic surgeon, and Greater Hartford Orthopedic Group, P.C.
On appeal, the plaintiff claims that the trial court improperly concluded that the plaintiff's proposed amended complaint did not relate back to the original complaint and was time barred. In light of the manner in which discovery in this case unfolded, and reading the original complaint broadly but reasonably, we conclude that the amended allegations of negligence as to the way in which the spinal surgery was performed on the plaintiff relate back to the allegations pleaded in the original complaint. The cause of action is, therefore, not barred by the statute of limitations. Accordingly, we reverse the judgment of the trial court.
The following procedural history and undisputed facts, as alleged in the pleadings, are relevant to the disposition of the plaintiff's appeal. On May 21, 2008, Kruger, an employee of Greater Hartford Orthopedic Group, P.C., performed a cervical laminectomy on the [158 Conn.App. 69] plaintiff to remove bone at the C7 level of his spine. During the surgery, an electrophysiologic monitor indicated an abnormal signal in the plaintiff's nerve function and Kruger aborted the surgery. The plaintiff sustained a spinal cord contusion, leaving him quadriparetic and with sensory loss. The plaintiff initiated this action and filed a complaint dated October 23, 2009. In counts one and two of the complaint, the plaintiff alleged that Kruger performed the surgery in a negligent manner. In count three, the plaintiff pleaded the doctrine of res ipsa loquitur. In counts four and five, the plaintiff alleged loss of consortium.
The plaintiff alleged his general negligence theory in counts one and two, asserting that Kruger's negligent care of the plaintiff during surgery fell below the acceptable standard of care when " Dr. Kruger failed to perform a safe and effective operation." In count three, the plaintiff further alleged that " [t]he damage to [the plaintiff's] spinal cord at C3-4-5 is ordinarily not seen [158 Conn.App. 70] in the course of surgery at C6-7 in the absence of someone's negligence" and " [t]he injuries were caused by an instrumentality solely within the defendants' control."
On January 12, 2010, the defendants filed a request to revise the plaintiff's complaint. In the request to revise, the defendants sought a more complete or particular statement for the following allegations: in counts one and two, " Dr. Kruger failed to perform a safe and effective operation" ; in count three, " [t]he damage to [the plaintiff's] spinal cord at C-3-4-5 is ordinarily not seen in the course of surgery at C6-7 in the absence of someone's negligence." The trial court, Holzberg, J., sustained the plaintiff's objection to the defendants' request to revise.
On October 24, 2011, the plaintiff disclosed James Macon, a neurosurgeon, as one of his expert witnesses. According to the disclosure, Macon was to testify that the plaintiff's injury was not the result of the positioning of his head and neck but instead was proximately caused by a negligently placed retractor blade used during the surgery (retractor theory). Specifically, his disclosed opinion was " it is more likely than not that there is a retractor blade pressing on the spinal cord at the level of the contusion . . . that the loss of signal occurred within minutes of Kruger's moving the retractors to C3-4, and that the damage to [the ...