Opinion
FBTCV156053341S
11-02-2017
Guy Magnuson et al. v. Edward H. Schuster et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE OBJECTION TO REQUEST TO AMEND COMPLAINT, NO. 146
Anthony D. Truglia, Jr., J.
Facts and Procedural History
This is a medical malpractice action. When the plaintiffs, Guy and Laura Magnuson, commenced this action, in October 2015, they asserted four causes of action against the defendants. Counts one and three of the plaintiffs' original complaint allege that the defendants, Edward H. Schuster and Stamford Health Integrated Practices, Inc., failed " to exercise that degree of care and skill ordinarily and customarily used by physicians specializing in diagnostic cardiovascular diseases" when treating Guy Magnuson. The plaintiffs claim that the defendants failed to recognize certain diagnostic markers that would have alerted them to the presence of cardiovascular disease while performing a pre-operative screening for Magnuson's upcoming shoulder surgery. The defendants cleared him for surgery, despite his complaints of chest pain at rest and shortness of breath on exertion. After the surgery, Magnuson suffered " severe, serious, painful and permanent injuries" which he alleges was caused by the defendants' carelessness and negligence in their handling of the pre-operative screening. The plaintiffs originally claimed " monetary damages in excess of fifteen thousand dollars" from the defendants for their claims of professional negligence. In addition, counts two and four of the plaintiffs' original complaint claim monetary damages based on loss of consortium and companionship for Laura Magnuson.
On June 9, 2017, the plaintiffs filed a request to amend their initial complaint (entry #145). Counts one through four of the proposed amended complaint are virtually identical to counts one through four of the original complaint. The newly added count of the proposed amended complaint, count five, essentially restates the same factual allegations of medical negligence of counts one and three of the original complaint as allegations of recklessness against Guy Magnuson. The plaintiff claims, in count five of the proposed amended complaint, that he suffered injuries as a result of the recklessness of Schuster in his care, diagnosis and treatment, and as a result of Schuster's failure to warn him and other attending physicians of the results of the defendants' pre-operative testing. The plaintiffs also seek to add a claim for " common law punitive damages with respect to" proposed count five to their prayer for relief.
On June 23, 2017, the defendants filed a timely objection to the plaintiffs' request to amend their complaint (entry #146). The defendants object to the proposed amended complaint on the ground that the plaintiffs should not be permitted to assert a new cause of action that is time-barred. The defendants argue that the plaintiffs are not simply amplifying or clarifying their four negligence counts from the original complaint, in which case the relation back doctrine might apply. Rather, they argue that the plaintiffs seek to assert a new, separate and distinct cause of action, for which the two-year statute of limitations has passed. The defendants further object to the proposed amendment on the grounds that the plaintiff has failed to abide by the court's earlier order to file a revised complaint deleting paragraph 5a contained in each paragraph of the plaintiffs' original complaint. On October 19, 2017, the plaintiffs filed a reply to the defendants' objection (entry #147).
General Statutes § 52-584 provides, in relevant part: " No action to recover damages for injury to the person, . . . caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, . . . hospital . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, . . ."
Practice Book § 10-60(a) provides, in relevant part: " [A] party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner: . . . (3) By filing a request for leave to file an amendment together with: (A) the amended pleading or other parts of the record or proceedings, and (B) an additional document showing the portion or portions of the original pleading or other parts of the record or proceedings with the added language underlined and the deleted language stricken through or bracketed . . . If no party files an objection to the request within fifteen days from the date it is filed, the amendment shall be deemed to have been filed by consent of the adverse party. If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection in writing specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall, . . . be filed with the clerk within the time specified above and placed upon the next short calendar list." " A trial court may allow, in its discretion, an amendment to pleadings before, during, or after trial to conform to the proof . . . Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment . . . The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial." (Internal quotation marks omitted.) Adler v. Rosenthal, 163 Conn.App. 663, 698, 134 A.3d 717 (2016).
Discussion
A. Applicability of the Relation Back Doctrine
The court agrees with the defendants that the plaintiffs' proposed amended complaint sets forth an entirely new cause of action of common-law recklessness. " There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on . . . Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent." (Internal quotation marks omitted.) Steigerwald v. U.S. Surgical Corp., Superior Court, judicial district of Fairfield, Docket No. CV-93-0300787-S, (August 2, 1993, Spear, J.).
Line-drawing in this area is not easy. " 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 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." Briere v. Greater Hartford Orthopedic Group, P.C., 325 Conn. 198, 211, 157 A.3d 70 (2017).
The plaintiffs cite Florence v. Plainfield, Superior Court, judicial district of Tolland, Complex Litigation Docket, Docket No. X07-CV-03-0084216-S, (July 15, 2005, Sferazza, J.), in support of their claim that a recklessness cause of action that arises from the same set of facts as a previously-pleaded negligence cause of action relates back to the filing of the original complaint and thus, cannot be attacked on statute of limitations grounds. In Florence v. Plainfield, supra, the plaintiff was the administrator of the estate of a pregnant woman who was murdered by her former boyfriend. The plaintiff brought suit against the police officer and municipality for allegedly failing to protect the decedent and her unborn child. The second count of the plaintiff's initial complaint alleged negligence on the part of the officer. The plaintiff then amended her complaint a year later to restate the original wrongful death claim as two new counts. Subsequently, and more than a year after filing her first amended complaint, the plaintiff again sought to amend her complaint again by adding two new counts alleging wrongful death based on recklessness.
The defendants in Florence v. Plainfield, supra, Superior Court, Docket No. X07-CV-03-0084216-S, objected to the proposed amendment, arguing that the two new counts asserted new causes of action which did not relate back to commencement of the original action and were, therefore, barred by operation of the two-year statute of limitations pursuant to § 52-584. The trial court disagreed and allowed the amendment, reasoning that " the critical determination for the court to make is whether the proposed reckless counts merely allege an alternative theory of liability based on the same set of essential facts propounded by the original complaint or, instead, create new claims founded on facts never previously alleged. The court rules that the reckless counts which the plaintiff seeks to add simply recast and refine allegations fairly described in the negligence counts presently pending against [the defendant police officer]."
The trial court in Florence v. Plainfield, supra, Superior Court, Docket No. X07-CV-03-0084216-S, relied in part on the Supreme Court case of Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991). In Gurliacci v. Mayer, supra, 546, the plaintiff initially brought a cause of action of negligence against the defendant, alleging that she was injured in a car accident caused by the defendant who was driving while under the influence of alcohol. The trial court allowed the plaintiff to amend her complaint to add a count alleging that the defendant was, at the time of the incident, " acting either wilfully, wantonly and maliciously, or outside the scope of his employment." Id. The defendant had objected to the proposed amendment, on the grounds that the statute of limitations for these claims had passed. Id. On appeal, our Supreme Court affirmed the trial court's ruling allowing the amendment. Id. In affirming the trial court's ruling, the Court highlighted the policy reasons supporting the relation back doctrine. " We have previously recognized that our relation back doctrine is akin to rule 15(c) of the Federal Rules of Civil Procedure, which provides in pertinent part: (c) RELATION BACK OF AMENDMENTS. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading . . . The policy behind rule 15(c) is that a party, once notified of litigation based upon a particular transaction or occurrence, has been provided with all the notice that statutes of limitations are intended to afford . . . Because rule 15 provides that an amendment relates back where the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims, is fully served." (Citations omitted; internal quotation marks omitted.) Id., 547-48.
Although the procedural history of the present case is similar to both Florence v. Plainfield, supra, Superior Court, Docket No. X07-CV-03-0084216-S, and Gurliacci v. Mayer, supra, the facts are critically different. In the present case, the plaintiffs restate their allegations of negligence almost verbatim as allegations of recklessness in the proposed new fifth count; the only new allegation is a breach of the defendants' " ongoing duty to advise and warn other physicians involved in the care and treatment of the [plaintiff] . . . of the " inadequate" results of his echocardiogram." As such, the plaintiffs' new claim clearly arises from the same factual allegations as the original complaint and, in addition, no portion of the limited new allegations directly contradict the prior allegations. See Briere v. Greater Hartford Orthopedic Group, P.C., supra, 325 Conn. 211. Furthermore, the allegations all involve the same actors, allege the same basic factual circumstances and claim identical injury. Id.
However, in stark contrast to the facts in Gurliacci v. Mayer, supra, the first four counts of the original complaint in the present case do not set forth any facts which would support a claim of recklessness. Even when viewed in the light most favorable to the plaintiffs, the first four causes of action only allege simple negligence. Therefore, it is not true that the plaintiffs in the present case are simply refining the allegations of the original complaint and alleging an alternative theory of recovery based on those same essential facts. See Florence v. Plainfield, supra, Superior Court, Docket No. X07-CV-03-0084216-S, . Rather, proof of recklessness requires evidence of a different quality, and sometimes quantity, than is required to prove allegations of ordinary negligence. " If the alternate theory of liability may be supported by the original factual allegations, then the mere fact that the amendment adds a new theory of liability is not a bar to the application of the relation back doctrine . . . If, however, the new theory of liability is not supported by the original factual allegations of the earlier, timely complaint, and would require the presentation of new and different evidence, the amendment does not relate back." (Citation omitted; emphasis added.) Sherman v. Ronco, 294 Conn. 548, 563, 985 A.2d 1042 (2010). Here, the new theory of liability, namely, recklessness, is not supported by the original factual allegations of the earlier, timely complaint, and would therefore require new and different evidence, rendering the relation back doctrine inapplicable.
Accordingly, the court sustains the defendants' objection on the grounds that the doctrine of relation back does not apply to the proposed amendment. The proposed new count advanced by the plaintiffs alleges a legal harm that is separate and distinct from the legal harm asserted in the first four counts, which does not arise from essentially the same factual circumstances. It is an entirely new cause of action that requires a different standard of proof and requests a different form of relief. Therefore, it does not relate back to the original complaint.
" Connecticut has defined recklessness as highly unreasonable conduct involving an extreme departure from ordinary care. A finding of recklessness, instead of mere negligence, may entitle a plaintiff to punitive as well as compensatory damages. Several Superior Court decisions have recognized a recklessness claim in the context of medical malpractice." (Footnotes omitted.) J. Lagnese, C. Anderson & F. Santoro, Connecticut Medical Malpractice (3d Ed. 2015) § 1-7, p. 10.
Moreover, unlike Florence v. Plainfield, supra, Superior Court, Docket No. X07-CV-03-0084216-S, and Gurliacci v. Mayer, supra, the factual allegations of the original four counts of the plaintiffs' complaint do not sufficiently apprise the defendants of facts that could, if properly pleaded, support allegations of recklessness. For example, the original first four counts contain no allegations that the defendants were deliberately indifferent to the plaintiff Guy's medical care, or any other specific allegations that would support a legally sufficient cause of action for recklessness in providing medical care and treatment. See, e.g., Wiseman v. Armstrong, Superior Court, judicial district of Hartford, Docket No. CV-02-0821661-S, (July 1, 2005, Wagner, J.T.R.) (allegations that defendants " knowingly disregarded an excessive risk to the decedent's health and safety and knowingly subjected the decedent to pain, physical and mental injury and death" sufficient to show recklessness).
For these reasons, allowing the proposed amendment of an entirely new cause of action, more than three years after the events described in the original complaint, would not be consistent with the purpose and intent of our statutes of limitation. See Gurliacci v. Mayer, supra, 546-48.
B. Violation of the Court's Previous Order
Having sustained the defendants' objection based on the inapplicability of the relation back doctrine, the court need not reach the defendants' request to deny the proposed amendment due to the plaintiffs' failure to comply with an earlier court order (entry #120.10). The plaintiffs are, however, ordered to delete paragraph 5a from each count of their complaint.
Conclusion
For the foregoing reasons, the defendants' objection to the plaintiffs' request to amend their complaint is sustained. In addition, the plaintiffs are ordered to file a revised complaint which deletes paragraph 5a from each count by November 15, 2017.