Opinion
No. CV-01-0457250 S
February 1, 2006
MEMORANDUM OF DECISION RE DEFENDANTS' OBJECTION TO PLAINTIFFS' REQUEST FOR LEAVE TO AMEND COMPLAINT ( # 218)
This is a medical malpractice action commenced by writ, summons and complaint bearing a return date of November 13, 2001. The plaintiffs seek damages arising out of the death of plaintiff's decedent, Danielle Mary Gannon, an infant, allegedly due to the negligence of the defendants in providing treatment to her and her mother during childbirth. In their original complaint, the plaintiffs asserted twenty-four specifications of negligence against defendant Craig Huttler, M.D., twenty specifications of negligence against defendant Beth Maloy, M.D. and twenty specifications of negligence against defendant Obstetrics and Gynecology of New Haven, P.C. None of these specifications of negligence alleged a lack of informed consent. While the original complaint was amended on December 11, 2001 and thereafter revised on June 18, 2004, these subsequent iterations likewise did not include any allegation that the plaintiffs' damages were caused by the defendants' failure to obtain informed consent for treatment.
By pleading dated December 28, 2005, the plaintiffs request leave to amend their complaint (#217). Attached to the request is the proposed Amended Complaint that, in Count One, adds the following specifications of substandard care:
These same allegations are also made in Counts Two and Three.
7x. failed to advise, inform and/or warn Agnes Gannon that she required a cesarean section;
7y. failed to advise, inform and/or warn Agnes Gannon of the risks of continuing with an attempted vaginal delivery;
7z. failed to set up a plan for delivery that limited the amount of time Agnes Gannon would be permitted to attempt a vaginal delivery prior to performing a cesarean section.
The defendants object to this portion of the Amended Complaint asserting that it alleges a new cause of action that is time-barred. The plaintiffs assert that the amendments do not allege a new cause of action and therefore relate back to the original complaint. For the reasons set forth below, the defendants' objection is sustained.
The defendants do not object to the other changes in the proposed Amended Complaint.
DISCUSSION
"While our courts have been liberal in permitting amendments . . . this liberality has limitations . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court." Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 583 (2003). The issue in the present case is whether the proposed amendment states a new and different cause of action or rather amplifies what has already been alleged. "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" Gallo v. G. Fox Co., 148 Conn. 327, 330 (1961). "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 . . ." Alswanger v. Smego, 257 Conn. 58, 65 (2001).
The plaintiff asserts that the proposed amendments merely amplify the allegations of the complaint. In support of this claim, the plaintiff relies on Gurlacci v. Mayer, 218 Conn. 531 (1991). In Gurlacci, a personal injury case arising out of a motor vehicle accident, the Supreme Court held that an amendment that reiterated the initial claim of negligence, but added that the defendant was acting either willfully, wantonly, and maliciously or outside the scope of his employment, did not allege a new cause of action. Id., 549. Gurlacci, however, needs to be considered in the context of other cases that have applied the relation back doctrine and come to a different result. For example, in Sharp v. Mitchell, 209 Conn. 59 (1988), the plaintiffs' first complaint brought a wrongful death action based on negligent supervision. The plaintiffs later attempt to amend the complaint to allege negligent design and construction of an underground storage area where the decedents suffocated, was held to state a new and different cause of action. Id., 73. In Patterson v. Szabo Food Service of New York, Inc., 14 Conn.App. 178 cert. denied, 208 Conn. 807 (1988), the original complaint alleged that the defendant had failed to clean a floor on which plaintiff fell. Plaintiff's proposed amendment claiming that the defendant installed or maintained a highly polished and slippery terrazzo floor and employed a method of food distribution that created a dangerous condition on the slippery floor, was held to state a new cause of action that did not relate back for purposes of the statute of limitations. Id., 182-83. Accord, Sandvig v. A. Dubreuil and Sons, Inc., 68 Conn.App. 79, 86 (2002) (in a slip and fall case, plaintiff originally alleged that defendant negligently failed to finish the floor where fall occurred; proposed amendment that defendant negligently damaged tiles when it installed a handicap ramp held to state a new and different cause of action).
In the present case, the proposed three new specifications of negligence essentially assert that the defendants failed to warn of the risks of a vaginal delivery and benefits of a cesarean section. Such an alleged failure to make a sufficient disclosure, provides a basis for claiming lack of informed consent. Logan v. Greenwich Hospital Ass'n., 191 Conn. 282, 289 (1983). Whether the proposed amendments are permissible turns on whether (1) they state a new cause of action separate from the negligence alleged in the original complaint and (2) they relate back to the date of the original complaint for purposes of the statute of limitations.
Connecticut has adopted the so-called "lay" standard for judging informed consent that imposes a duty upon the physician to disclose such information as a reasonable patient would consider material to the decision whether or not to undergo treatment. Logan v. Greenwich Hospital Ass'n., supra, 292. Our Appellate Court has stated that "although a malpractice complaint may include claims both for a failure to perform and for failure to inform, the two claims are not identical." Pekera v. Purpora, 80 Conn.App. 685, 691 (2003).
"The distinction between a duty to exercise due care in the performance of requisite medical procedures and a duty to exercise due care in informing a patient of medical risks . . . reflects . . . the fundamental difference between the appropriate performance of professional skills and the proper engagement of a patient in decision-making about his or her professional care." Id.
In the present case, the proposed amendment alleges that plaintiff's injuries were caused by a different group of facts than those alleged in the original complaint. As Pekera v. Purpora, supra, makes clear, negligently performing medical treatment is different from negligently failing to advise a patient of medical risks. The proposed amendment to the complaint states a new cause of action based on lack of informed consent. Since the proposed amended complaint is outside the applicable two-year statute of limitations, General Statutes § 52-584, the defendants' objection must be sustained.
CONCLUSION
For the reasons set forth above, the defendants' objection to plaintiffs' Request For Leave To File Amended Complaint is sustained.
So ordered.