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Briere v. Greater Hartford Orthopedic Group P.C.

Supreme Court of Connecticut

April 11, 2017

DONALD BRIERE ET AL.
v.
GREATER HARTFORD ORTHOPEDIC GROUP, P.C., ET AL.

          Argued December 15, 2016

          Lorinda S. Coon, with whom was John W. Sitarz, for the appellants (defendants).

          Ron Murphy, with whom was Roger Kaye, for the appellees (plaintiffs).

          Roy W. Breitenbach and Michael J. Keane, Jr., filed a brief for the Connecticut Orthopaedic Society as ami-cus curiae.

          Claire V. Jackson and Michael G. Rigg filed a brief for the Connecticut Defense Lawyers Association as amicus curiae.

          James J. Healy and Cynthia C. Bott filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

          OPINION

          ROGERS, C. J.

         In this certified appeal, we are tasked with clarifying the contours of the relation back doctrine, specifically as applied to medical malpractice claims.[1] The plaintiff, Donald Briere, [2] brought a cause of action against the defendants, Greater Hartford Orthopedic Group, P.C. (practice group), and David Kruger, an orthopedic surgeon, alleging medical malpractice during a spinal surgery resulting in the plaintiff suffering quadriparesis. After the expiration of the relevant statute of limitations, General Statutes § 52-584, [3]the plaintiff sought to amend his complaint. Both the original and amended complaints included claims that Kruger failed to properly plan and to perform the surgery through the use of an instrumentality in his control. The plaintiff's original complaint, however, included detailed allegations of the improper usage of a skull clamp. In his proposed amended complaint, however, the plaintiff replaced those detailed allegations with allegations of the improper use of a retractor blade. The trial court denied the request to amend, narrowly construing the original complaint as limited to a claim of the negligent usage of the skull clamp and subsequently granted the defendants' motion for summary judgment because the plaintiff had abandoned the theory that negligent use of the skull clamp had caused his injury. The Appellate Court reversed the trial court's denial of the plaintiff's request to amend, broadly construing the original complaint as a claim of negligence in performing the surgery, which could be supported by either set of factual allegations. Briere v. Greater Hartford Orthopedic Group, P.C., 158 Conn.App. 66, 118 A.3d 596 (2015). The defendants advocate for this court to adopt the narrower approach used by the trial court and to reverse the judgment of the Appellate Court. We decline to do so and affirm the judgment of the Appellate Court.

         The following facts and procedural history are relevant to this appeal. In November, 2009, the plaintiff initiated a cause of action against the defendants for injuries he suffered during a spinal surgery performed on May 21, 2008.[4] In count one of the complaint, the plaintiff alleged that Kruger had failed to plan or to perform a safe and effective operation. The plaintiff made additional allegations in count one that Kruger was negligent in his use of a skull clamp to secure the plaintiff during the surgery.[5] At the time that he filed his complaint, the plaintiff also filed a petition for an automatic extension of the statute of limitations. The trial court granted the petition, extending the expiration of the statute of limitations from May 21, 2010 to August 19, 2010.

         Six months before the expiration of the statute of limitations, the defendants filed a request to revise, in which they sought a more complete or particular statement of how Kruger had failed to plan or to perform a safe and effective surgery. The plaintiff objected to the request to revise, asserting that the allegations were not conclusory and that the proper mechanism to procure a more specific statement was through discovery. Prior to the expiration of the statute of limitations, the trial court, Holzberg, J., sustained the plaintiff's objection.

         Subsequently, the plaintiff disclosed James Macon, a neurosurgeon, as an expert witness and indicated that Macon would testify that Kruger had been negligent when he improperly placed a retractor blade during surgery. The defendants deposed Macon five months after he was disclosed as an expert.

         The plaintiff then filed a request for leave to file an amended complaint. In the proposed amended complaint, the plaintiff removed the allegations related to the skull clamp and added allegations that Kruger had failed to properly apply a retractor blade during surgery. The defendants objected to the request on the ground that the allegations concerning the retractor blade were new allegations and did not relate back to the original pleading, and therefore were barred by the statute of limitations. In a written memorandum of decision, the trial court, Aurigemma, J., sustained the defendants' objection.

         Subsequently, the defendants moved for summary judgment on the ground that the plaintiff could not prove medical negligence under the original complaint because he had not disclosed an expert who could testify concerning the skull clamp. Prior to responding to the defendants' motion for summary judgment, the plaintiff filed a motion in limine asking the trial court to rule on whether it would admit Macon's expert testimony on the retractor blade theory at trial in light of the court's denial of the plaintiff's request to amend the complaint to include the retractor blade allegations. In response to the motion in limine, the trial court, Aurigemma, J., ruled that it would not admit Macon's testimony at trial. The plaintiff then filed a memorandum in opposition to the motion for summary judgment in which he argued that the trial court's denial of his request to amend and its ruling on the motion in limine were inconsistent with the trial court's previous ruling sustaining the plaintiff's objection to the defendants' request to revise, and that the rulings were fundamentally unfair. The plaintiff did not submit affidavits or other evidence that created a genuine issue of material fact concerning the negligent usage of the skull clamp. Judge Aurigemma rendered summary judgment in favor of the defendants on all counts on the ground that the plaintiff did not have an expert who could testify that improper skull clamp usage caused his injuries, which were the specific allegations in the complaint.[6] Judge Aurigemma noted that her decision was dependent upon her previous denial of the plaintiff's request to amend the complaint.

         The plaintiff appealed to the Appellate Court. See id. The Appellate Court reversed the trial court's denial of the plaintiff's request to amend and its subsequent summary judgment rendered in favor of the defendants on the ground that the trial court improperly applied the relation back doctrine. Id., 68. Specifically, the Appellate Court held that the retractor blade allegations related back to the original theory that Kruger was negligent during the surgery, as found in the allegations that Kruger had failed to plan or to perform a safe and effective surgery. Id., 78. This appeal followed.

         The defendants claim that the Appellate Court improperly interpreted the allegations in the original complaint that Kruger failed to properly plan or to perform the surgery as independent from the allegations that he failed to properly use the skull clamp. Under this state's fact based pleading requirements, the defendants assert, the planning and performance allegations cannot stand alone because they are conclusory in nature and merely introduce the skull clamp allegations that form the factual basis for the plaintiff's claim. They further assert that the Appellate Court improperly interpreted the res ipsa locquitor allegations; see footnote 4 of this opinion; as support for a theory of negligence beyond improper skull clamp placement in the original complaint. The defendants claim that when the original complaint is properly read as a claim that Kruger improperly used the skull clamp during surgery, then the proposed amended allegations regarding the retractor blade do not relate back because they are an entirely different theory of negligence.[7]

         The plaintiff asserts that the Appellate Court properly interpreted the original complaint as a theory that Kru-ger negligently planned and performed the surgery in one or more ways. He claims that the original allegations provided fair notice to the defendants that his theory of negligence related to Kruger's conduct during the surgery. The plaintiff further asserts that within the context of a medical malpractice case, where the plaintiff may not be able to discover the precise manner in which the defendant was negligent until after the parties engage in discovery, it would be unjust to hold a plaintiff to as narrow a pleading standard as the defendants advocate.

         We begin by setting forth the proper standard of review and applicable legal principles. ‘‘[T]he de novo standard of review is always the applicable standard of review for resolving whether subsequent amendments to a complaint relate back for purposes of the statute of limitations.''[8] (Emphasis omitted.) Sherman v. Ronco, 294 Conn. 548, 554 n.10, 985 A.2d 1042 (2010).

         ‘‘The relation back doctrine has been well established by this court.'' Alswanger v. Smego, 257 Conn. 58, 64, 776 A.2d 444 (2001). There is a ‘‘ ‘well settled' body of case law holding 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 [when] an entirely new and different factual situation is presented, a new and different cause of action is stated.' . . . DiLieto v. County Obstetrics & Gynecol-ogy Group, P.C., 297 Conn. 105, 140, 998 A.2d 730 (2010).'' (Emphasis in original; footnote omitted.) Fin-kle v. Carroll, 315 Conn. 821, 837-38, 110 A.3d 387 (2015).

         ‘‘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. Danbury Hospital, 232 Conn. 242, 263-64, 654 A.2d 748 (1995).'' (Internal quotation marks omitted.) Alswanger v. Smego, supra, 257 Conn. 65. ‘‘[I]n the cases in which we have determined that an amendment does not relate back to an earlier pleading, the amendment presented different issues or depended on different factual circumstances rather than merely amplifying or expanding upon previous allegations.'' Grenier v. Commissioner of Transportation, 306 Conn. 523, 560, 51 A.3d 367 (2012).

         More specifically, where the proposed allegations promote a change in or an addition to a ground of negligence arising out of a single group of facts we have allowed use of the relation back doctrine. Gurliacci v. Mayer, 218 Conn. 531, 549, 590 A.2d 914 (1991) (‘‘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'' [citation omitted; internal quotation marks omitted]); see DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 297 Conn. 139-43 (allegation that defendant physician failed to ensure that specific surgeon participated in surgery related back to allegation that defendant physician failed to communicate pathology results to that surgeon prior to surgery); Wagner v. Clark Equipment Co., 259 Conn. 114, 119, 788 A.2d 83 (2002) (allegation that forklift was defective because backup alarm failed to sound when forklift was engaged in reverse did relate back to allegations that forklift was defective because it lacked, inter alia, backup alarm that sounded sufficiently distinct to warn plaintiff); Bar-nicoat v. Edwards, 1 Conn.App. 652, 654, 474 A.2d 808 (1984) (allegations of different defects in house construction related back to other claims of defect in house construction in breach of contract claim); Miller v. Fishman, 102 Conn.App. 286, 299-300, 925 A.2d 441 (2007) (allegations describing specific manner in which defendant obstetrician delivered minor plaintiff and precise injuries minor plaintiff sustained related back to allegations that defendant negligently managed delivery of minor plaintiff), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008). On the other hand, where new allegations directly contradict those in the operative complaint we have held that they do not relate back to those in the operative complaint. Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 806-808, 945 A.2d 955 (2008) (allegation that defendant surgeons used incorrect spinal fusion material during surgery contradicted, and therefore did not relate back to, allegation that surgeons should not have performed surgery at all on plaintiff); see also Alswanger v. Smego, supra, 257 Conn. 61 (allegation of lack of informed consent regarding surgical resident's participation in surgery did not relate back to allegation that defendant physician and defendant hospital had failed to disclose all material risks in connection with plaintiff's surgery, care and treatment); 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).

         ‘‘When comparing [the original and proposed amended] pleadings, we are mindful that, ‘[i]n Connecticut, we have long eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modern 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. . . . Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed 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.' . . . Deming v. Nationwide Mutual Ins. Co., [279 Conn. 745');">279 Conn. 745, 778, 905 A.2d 623 (2006)].'' Dimmock v. Lawrence & Memorial Hospital, Inc., supra, 286 Conn. 802.

         We acknowledge that in our prior cases applying the relation back doctrine we perhaps have not provided as much clarity as necessary for the trial court to apply the doctrine consistently. After a careful review of our case law, it is apparent that in order to provide fair notice to the opposing party, [9] the proposed new or changed allegation of negligence must fall within the scope of the original cause of action, which is the transaction or occurrence underpinning the plaintiff's legal claim against the defendant. Determination of what the original cause of action is requires a case-by-case inquiry by the trial court. In making such a determination, the trial court must not view the allegations so narrowly that any amendment changing or enhancing the original allegations would be deemed to constitute a different cause of action. But the trial court also must not generalize so far from the specific allegations that the cause of action ceases to pertain to a specific transaction or occurrence between the parties that was identified in the original complaint. While these guidelines are still broad, a bright line rule would not serve the purpose of promoting substantial justice for the parties.[10]

         If new allegations state a set of facts that contradict the original cause of action, which is the transaction or occurrence underpinning the plaintiff's legal claim against the defendant, then it is clear that the new allegations do not fall within the scope of the original cause of action and, therefore, do not relate back to the original pleading. But an absence of a direct contradiction must not end the trial court's inquiry. The trial court must still determine whether the new allegations support and amplify the original cause of action or state a new cause of action entirely. Relevant factors for this inquiry include, but are not limited to, whether the original and the new allegations involve the same actor or actors, allege events that ...


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