Opinion
CV136037355S
06-07-2016
Maj Lesti et al. v. Yale-New Haven Hospital, Inc
UNPUBLISHED OPINION
RULING ON OBJECTION TO JURY CLAIM (#184); MOTION TO STRIKE JURY CLAIM (#199); MOTION FOR SUMMARY JUDGMENT (#201)
Matthew E. Frechette, J.
The court must determine whether to grant this motion for summary judgment on the ground that the plaintiff's informed consent claim was filed outside of the statute of limitations. The court must additionally determine whether the plaintiff's jury claims should be stricken. The motion for summary judgment is granted because the informed consent claim does not relate back to the original claim of medical malpractice. The jury claim is also stricken because no new issues of fact have been joined that would permit the introduction of a new jury claim.
INTRODUCTION
The instant matter concerns the amendment of a new cause of action to the plaintiffs' complaint and the corresponding attempted revival of a previously-stricken jury claim. On March 28, 2013, the plaintiffs, Zayliah Meade and Maj Lesti, commenced this action by service of process upon the defendants, Yale-New Haven Hospital, Inc., Christina Duzyj, M.D., and Maria de Leon, M.D. The plaintiff's original eight-count complaint, dated March 26, 2013, sounds in medical malpractice alleges the following relevant facts. On April 19, 2012, Yale-New Haven Hospital, through the acts and omissions of its servants, agents, and/or employees, undertook the continuous medical care, treatment, monitoring, and supervision of Maj Lesti during the birth of her child, Zayliah Meade.
Lesti appears both as parent and next friend of Meade and as an individual.
While under care of Yale-New Haven Hospital, Zayliah Meade suffered injuries caused by the hospital's failure to exercise that degree of care and skill ordinarily and customarily utilized by a hospital delivering care in that specialty in one or more of the following ways: " [a] It failed to adequately and properly care for, treat, diagnose, monitor and supervise the plaintiff's medical condition; [b] It failed to offer cesarean section to Maj Lesti during the prolonged labor that was not progressing; [c] It failed to recognize signs of fetal distress indicating the need for prompt cesarean section; [d] It offered only vacuum extraction when Maj Lesti was suffering from maternal exhaustion and unable to delivery infant Zayliah Meade; [e] It aggressively and repeatedly aftempted vacuum extraction four separate times unsuccessfully; [f] It caused head trauma to infant Zaytiah Meade during their reported attempts to delivery her with vacuum extraction; and [g] It failed to perform cesarean section in a timely fashion." (Plaintiffs' complaint of 3/26/13, Count One, ¶ 5.)
On January 9, 2014, the plaintiff withdrew the causes of action against Duzyj and de Leon, leaving Yale-New Haven Hospital as the sole remaining defendant. The plaintiff's then filed an amended complaint, dated March 4, 2014, which included the original claims against the defendant but removed those against Duzyj and de Leon.
As the remaining counts are directed against Yale-New Haven Hospital, Inc., it will be hereafter referred to as " the defendant."
From here arose the procedural basis for the instant motions. On October 27, 2014, the plaintiffs filed a claim for a jury. On November 17, 2014, the defendant filed a motion to strike the jury claim on the ground that the plaintiffs failed to comply with the time limitations set forth by General Statutes § 52-215. That motion was granted by the court, Robinson, J., on January 8, 2015 (#150.10).
Thereafter, the plaintiff filed a request to amend with an attached complaint, dated February 3, 2015. This second amended complaint repeats the medical malpractice claims and adds a new claim sounding in informed consent and alleging that the plaintiffs' injuries " were caused by the failure of the defendants, under all of the circumstances then and there present, to obtain adequately informed consent from the plaintiff in that: [a] they failed to adequately and fully inform the plaintiff of the risks of a dangerous medical procedure; [b] they failed to adequately and fully inform the plaintiff of alternative procedures such as cesarean section; and, [c] they failed to offer the plaintiff less risky alternatives to vacuum assisted delivery." (Plaintiff's second amended complaint of 2/3/15, Count Nine, ¶ 5.)
The defendant did not object to the plaintiffs request to amend, and the second amended complaint became the operative complaint in this action. The defendant filed an answer to that complaint on September 17, 2015. The next day, the plaintiffs filed a new jury claim (#182), to which the defendant objected (#184). The court has not yet ruled on that objection.
On December 7, 2015, the defendant additionally filed an amended answer and special defense. Following that, on December 14, 2015, the plaintiff's filed yet another jury claim (#197), this time based on the purported joinder of new facts by the defendant's amended answer and special defense.
On December 31, 2015 the defendant filed a motion to strike the jury claim (#199) and a motion for summary judgment as to the informed consent claim (#201). The plaintiffs filed an opposition to both motions on February 10, 2016, to which the defendant filed a reply. Arguments regarding those motions, as well as the defendant's earlier objection (#184) were heard at the short calendar on May 9, 2016.
DISCUSSION
The court will first discuss the defendant's motion for summary judgment (#201). " Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
In support of the motion for summary judgment, the defendant argues that the plaintiffs failed to timely raise the informed consent claim within the two-year statute of limitations period under General Statutes § 52-584, and that the plaintiffs' newly pleaded claim does not relate back to the original complaint. In opposition, the plaintiffs contend that the informed consent claim relates back to the original complaint because a single group of facts may support several distinct causes of action.
The plaintiffs' informed consent claim was indeed filed outside the limitations period of § 52-584, which began running on April 19, 2012, and is time-barred unless the claim relates back to the original medical malpractice claim. " 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 . . . To relate back to an earlier complaint, the amendment must arise from a single group of facts . . . In determining whether an amendment relates back to an earlier pleading, we 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 . . . Finally, in 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." (Citations omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 559-60, 51 A.3d 367 (2012).
Of course, our Supreme Court has already answered the question of whether an informed consent count relates back to a medical malpractice action for purposes of the statute of limitations, and has answered it in the negative. In Keenan v. Yale New Haven Hospital, 167 Conn. 284, 285, 355 A.2d 253 (1974), the plaintiff sought to plead an assault and battery claim in avoidance of the statute of limitations based on the allegation that the defendant physician " assaulted the plaintiff by performing a surgical operation on him without securing his informed consent." The court rejected the plaintiffs argument and held that the new claim did not relate back to the original complaint, explaining: " Acts 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." Id., 286; see also Muszynski v. Terranova, Superior Court, judicial district of Hartford, Docket No. CV-07-5008687-S, (May 29, 2009, Aurigemma, J.) (47 Conn.L.Rptr. 662) (informed consent claim did not relate back to medical malpractice complaint); Muszynski v. Terranova, Superior Court, judicial district of Hartford, Docket No. CV-06-5007074-S, (May 13, 2009, Sheldon, J.) (47 Conn.L.Rptr. 779) (same); Gannon v. Huttler, Superior Court, judicial District of New Haven, Docket No. CV-01-0457250-S (February 1, 2006, Devlin, J.) (same).
The claim at issue in Keenan, though cloaked partly in the language of assault and battery, is recognized to have sounded in informed consent. See Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 806, 945 A.2d 955 (2008) (citing Keenan for the proposition that lack of informed consent to surgery did not relate back to allegations of negligence in performing surgery).
More than merely amplifying or expanding upon previous allegations, the informed consent claim presents an entirely different legal issue from the medical malpractice claim. A comparison of medical malpractice and informed consent reveals distinctions that go to the heart of each cause of action. " [A]lthough a malpractice complaint may include claims both for failure to perform and for failure to inform, the two claims are not identical . . . In Williams [ v. Chameides, 26 Conn.App. 818, 821, 603 A.2d 1211, cert. denied, 221 Conn. 923, 608 A.2d 689 (1992)], we characterized a claim for failure to perform and a claim for failure to inform of the risks of delay as separate and distinct . . . 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 is not merely linguistic. It reflects, instead, 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." Pekera v. Purpora, 80 Conn.App. 685, 691, 836 A.2d 1253 (2003), aff'd, 273 Conn. 348, 869 A.2d 1210 (2005). " Indeed, the focus of a medical malpractice case is often a dispute involving the correct medical standard of care and whether there has been a deviation therefrom. Conversely, the focus in an action for lack of informed consent is often a credibility issue between the physician and the patient regarding whether the patient had been, or should have been, apprised of certain risks prior to the medical procedure." (Emphasis added.) Shortell v. Cavanagh, 300 Conn. 383, 389, 15 A.3d 1042 (2011). Thus, because it embraces an entirely different legal theory, the plaintiffs' informed consent claim does not relate back to the original medical malpractice claim.
Moreover, at the short calendar hearing, the plaintiffs' counsel conceded that he knew of all of the facts that formed the basis of the second amended complaint at the time the original complaint was filed. Nevertheless, the informed consent claim was not included in the original complaint. The statute of limitations " begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof." Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 (1987) (informed consent claim did not relate back to original action and so was time-barred). As such, pursuant to § 52-584, the informed consent claim must have been filed within the two-year limitations period. Since that period expired prior to the filing of the second amended complaint, the plaintiffs' informed consent count is time-barred.
The conclusion above is critical to the resolution of the defendant's objection to the plaintiffs' jury claim of September 18, 2015 and the defendant's motion to strike the jury claim of December 14, 2015. A claim for a jury trial must be filed either within thirty days of the return date, or within ten days after a new issue of fact is joined to the case. General Statutes § 52-215. The defendant argues that the second amended complaint did not introduce a new issue of fact into the case because the informed consent claim, barred by the statute of limitations, was not a viable cause of action. The defendant notes, additionally, that the plaintiffs' first jury claim was stricken because it was not timely, and that the plaintiffs should not be permitted to file a new jury claim based on a cause of action that fails as a matter of law. In opposition, the plaintiffs argue that the jury claims are not premised upon facts alleged in support of the informed consent claim. Rather, it is the plaintiffs' contention that the defendant's answers and amended special defense filed in response to the second amended complaint joined new issues of fact to the case, thus creating multiple opportunities for a new jury claim to come into existence.
The plaintiff is correct that if an amended pleading introduces new facts into the case, then a new jury docket claim is allowed under § 52-215. However, if the new pleading and the new special defenses do not introduce new facts into the case, then there is no right to a new jury claim. Masto v. Board of Education, 200 Conn. 482, 511 A.2d 344 (1986) (amended answer did not introduce new issue of fact or reopen window in which to file jury claim); see also City of New Haven Water Pollution Control Authority v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV-91-0318934-S, (April 2, 1997, Hodgson, J.) (late amendment to the pleadings did not entitle the plaintiff to a second opportunity to seek a jury claim). For instance, in Javit v. Marshall's Inc., 40 Conn.App. 261, 267 n.6, 670 A.2d 886, cert. denied, 236 Conn. 915, 673 A.2d 1142 (1996), the statute of frauds defense that was raised in the pleadings presented a mixed question of fact and law, the resolution of which would necessarily turn on the evidence adduced at trial. Thus, a new jury claim was permitted.
Not so here. In the instant matter the " new" issue before the court, unlike that in Javit, is not fact-intensive. Rather, the defendant's statute of limitations defense presents a pure legal question that can be resolved on the face of the pleadings and without further inquiry.
A comparison of the amended pleadings to the original pleadings confirms that no new issues of fact have been joined. As there is no factual dispute for the jury to decide, there is nothing that would permit a new jury claim under § 52-215. Moreover, while it is true that the defendant did not object to the request to amend the complaint to add Count Nine, this does not save a claim that has been resolved as a matter of law. As discussed above, the plaintiffs' informed consent claim was not timely filed and must fail. In turn, the plaintiffs' jury claims, which are not made viable by the presence of pure issue of law, must also fail.
CONCLUSION
Based on the foregoing, the court sustains the defendant's objection (#184) to the September 18, 2015 jury claim. Additionally, the court grants both the defendant's motion to strike the December 14, 2015 jury claim (#199) and the defendant's motion for summary judgment (#202).