Opinion
KNLCV146021468S
07-06-2017
Carolyn A. Lubitski, Administrator of the Estate of Robert Lubitski v. Prohealth Physicians, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON OBJECTION (#147) TO REQUEST TO AMEND COMPLAINT
Leeland J. Cole-Chu, J.
The original complaint in this medical malpractice action alleges that, on September 8, 2012, three days after the plaintiff's decedent, Robert Lubitski, visited the defendant medical practice and was seen by the defendant Cheryl McDonald, PA-C, Mr. Lubitski died of a pulmonary embolism. It is undisputed that the decedent's death certificate lists pulmonary embolism as the primary cause of death. Count one is against McDonald for malpractice in several particulars regarding her alleged failure to consider, let alone investigate, whether the decedent was suffering from a pulmonary embolism. Count two is against the corporate defendant--some or the other or both--as principals of McDonald. Count three is against the corporate defendants for medical malpractice for their own alleged medical malpractice, through one or more of their agents or employees, for the same failures alleged as to McDonald and for several claimed failures to have or to follow policies which would, if enforced, have screening patients for pulmonary embolism.
On February 6, 2017, the plaintiff filed a request (#145) for leave to amend the complaint to add allegations arising from the opinion of an expert witness disclosed also on February 6, 2017 (#144), that the cause of the plaintiff's decedent's death may have been myocardial infarction. Dr. Richard Dupee, it is disclosed, will testify that it was a lack of appropriate care of the plaintiff's decedent which caused the decedent's death and, more specifically, that the decedent's " history, as well as the EKG [electrocardiogram] should have caused [defendant] McDonald to immediately consider the patient was having some major cardiopulmonary event such as a pulmonary embolism or myocardial infarction . . . Deciding to send the patient home without ruling out life threatening conditions and simply saying the patient was overweight and/or diabetic was a very significant departure [from] the standard of care of the [defendants]." The disclosure of Dr. Dupee does not include that he will opine that the cause of death was myocardial infarction--or that which illness caused death is essential to the plaintiff's claim of malpractice by the defendants.
The policy of the courts of this state is one of liberality when it comes to allowing amendments of pleadings. Moore v. Sergi, 38 Conn.App. 829, 836, 664 A.2d 795 (1995).
Beginning with their objection #147, which was e-filed after 5:00 p.m. on February 21, 2017. the defendants vigorously object to the request for leave to amend. See also defendants' briefs #150, #156 and #159. The plaintiff's briefs since the subject objection are #149, #152, #157 and #160. #158 is a belated showing of the amendments as required by Practice Book (2017) § 10-60(a)(3).
The first of the plaintiff's grounds for overruling the present objection is that it was filed late. The defendant claims, without dispute, that their objections were filed a few minutes after 5:00 p.m. on February 21, 2017, the fifteenth day after the request for leave to amend was filed. See Practice Book § 10-60(a)(3). The result is that the objection was recorded as filed the next day. Although deadlines do matter, and sometimes a minute's delay is properly deemed a waiver of an objection or other right, the policy of promoting substantial justice for the parties requires considering the merits of the present objections. See Briere v. Greater Hartford Orthopedic Group, P.C., 325 Conn. 198, 210, 157 A.3d 70 (2017).
Our Supreme Court recently clarified the " relation back" doctrine as applied to proposed amendments to complaints. In Briere v. Greater Hartford Orthopedic Group, P.C., 325 Conn. 198, 157 A.3d 70 (2017), the court stated that, " in order to provide fair notice to the opposing party, 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." (Emphasis in original.) Id., 325 Conn. 210.
In Briere, the court explained that allegations of new facts that contradict the plaintiff's original cause of action will generally not relate back to the original complaint for statute of limitation purposes. Id., 211. Even in the absence of a contradiction between the new allegations and original claim, the court must determine whether the new allegations set forth by the plaintiff " support and amplify the original cause of action or state a new cause of action entirely." Id. The Briere court gave the following as examples of factors which may be relevant to determining whether the new claims support or amplify an extant claim: " whether the original and new allegations involve the same actor or actors, allege events that occurred during the same period of time, occurred at the same location, resulted in the same injury, allege substantially similar types of behavior, and require the same types of evidence and experts." Id.
All three counts of the original complaint focus on the defendants' alleged failure to consider and investigate whether the decedent had a pulmonary embolism. Those allegations had a reasonable basis in the death certificate. Stepping back to study the larger picture and considering the allegations necessarily implied by the facts alleged; see Fort Trumbull Conservancy, LLC v. Alves, 286 Conn. 264, 276 n.11, 943 A.2d 420 (2008); the original complaint alleges that the defendants failed to apprehend a life-threatening situation and to respond appropriately to that emergency. See Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005) (interpretation of pleadings is a question of law for the court); Briere v. Greater Hartford Orthopedic Group, P.C., supra, 325 Conn. 209 (pleadings are not to be read in a hypertechnical manner). The proposed amendments neither change the nature of any of the three counts nor conflict with them. Indeed, they support and amplify the plaintiff's allegations within the meaning of Briere, supra . The amendments would state the illness which was the immediate cause of the decedent's death as pulmonary embolism or myocardial infarction. But, just as the plaintiff never claimed that the defendants caused the decedent's pulmonary embolism, the proposed amended complaint does not allege that the defendants caused either pulmonary embolism or myocardial infarction.
While the defendants are correct that the original complaint does not contain an explicit broad, nonspecific allegation of negligence; see defendants' surreply #150; the essential alleged negligence in this case has been from the beginning, and still is, the defendants' alleged failure to consider that the decedent might be suffering from a life-threatening condition and to respond appropriately, such as by examination or tests to rule out such a condition or to send the decedent to a hospital emergency room for diagnosis and treatment of such a condition and, as to the corporate defendants, to have and enforce policies to ensure such prophylactic practices such as " set[ting] up policies and/or procedures for patients with shortness of breath, chest pain and/or a syncopal event." See Original Complaint, count three, para. 10(n). Considering the allegations of the original complaint as a whole, the transaction or occurrence at its heart was McDonald's September 5, 2012, evaluation and treatment (or lack of treatment) of the decedent, including improperly reading--or failing to read--all of the decedent's pertinent medical records and failing to respond appropriately to his symptoms. The proposed amendments do not change the essential nature of the plaintiff's claims, let alone allege a different transaction or occurrence. The proposed allegations merely support the present allegations by alleging that the life-threatening condition afflicting the decedent might have been myocardial infarction and/or pulmonary embolism. The proposed amendments amplify the present allegations by alleging duties concerning the possibility--or presence, if myocardial infarction had been diagnosed by McDonald--of a different life-threatening condition than the one originally, solely mentioned.
Returning to the factors laid out in Briere v. Greater Hartford Orthopedic Group, P.C., supra, the new allegations involve the same actors (the defendants and their patient); the same, single visit to the corporate defendants and examination, evaluation and recommendation by defendant McDonald; the same essential negligence--failure to apprehend and appropriately respond to a life-threatening condition in the decedent--in various particulars; the same causation--not pulmonary embolism or myocardial infarction but death by failure of immediate treatment; and the same injury, the patient's death. It is true that the proposed amendments add allegations concerning a different cardiopulmonary conditional from pulmonary embolism. However, the new allegations are consistent with the necessarily implied allegations in the original complaint that McDonald failed to apprehend, and to respond appropriately to, the possibility that the decedent had a life-threatening condition. The new allegations in count three as to the corporate defendants' direct negligence are consistent with the extant allegation that those defendant were negligent, without reference to pulmonary embolism, for " fail[ing] to set up policies and/or procedures for patients with shortness of breath, chest pain and/or a syncopal event."
" 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." (Emphasis omitted; internal quotation marks omitted.) Finkle v. Carroll, 315 Conn. 821, 838, 110 A.3d 387 (2015). The proposed amendments in this case appear to be less significant--to be more consistent with the complaint being amended--than those allowed in Briere v. Greater Hartford Orthopedic Group, P.C., supra, 325 Conn. 214 (new retractor blade allegations did not contradict the general theory that the doctor misused medical equipment). The proposed amendments relate back to the allegations of the original complaint.
This finding is for present purposes, i.e., without prejudice to the defendants claiming and litigating the bar of the statute of limitation as a defense. See Lagassey v. State, 268 Conn. 723, 748-49, 846 A.2d 831 (2004) (determination of when plaintiff should have discovered " actionable harm" is ordinarily a question for trier of fact).
The defendants' claim that to allow the proposed amendments will change the issues and proof at trial is unpersuasive. Rather, the court finds that the proposed amendments concerning perception and diagnosis of, and medical responses to, life-threatening conditions of pulmonary embolism and/or myocardial infarction will require substantially similar expert witnesses and other evidence. As to the defendants' claim of prejudice in having to resume discovery anew, the defendants have disclosed no expert witness in this case: they have neither committed themselves to any expert witness's approach to the plaintiff's claims nor sustained the expense of defending a defense expert deposition. Other claimed prejudice can be mitigated effectively by continuing the trial and other court events as reasonably necessary or convenient and modifying the scheduling order in this case.
In a larger sense, if the court were to refuse to allow an amendment that frees the complaint from being essentially frozen in the state of facts known by the plaintiff and the plaintiff's attorney at the time it was filed, a defendant might--despite silently believing or even knowing ab initio that the plaintiff had alleged the wrong etiology--argue that the trier of fact could not find for the plaintiff even though the trier of fact found all the facts alleged in the complaint true except the particular, alleged illness or condition from which the patient died. The court will avoid that disquieting hypothetical if possible.
For these reasons and because, within the law and rules of court, the court's overarching principle is promoting substantial justice for the parties; see Briere v. Greater Hartford Orthopedic Group, P.C., supra, 325 Conn. 210; the defendants' objection is overruled.
For the foregoing reasons, the defendants' objection to the request to amend is overruled, leave to amend is granted, and the defendants shall respond to the amended complaint #145 within thirty days.