Opinion
HHDCV146049819S
09-14-2017
Robert McCann v. Joseph Babiarz, M.D. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' OBJECTION TO PLAINTIFF'S REQUEST TO AMEND
William H. Bright, J.
I. Introduction
The defendants, Joseph Babiarz, M.D. and ProHealth Physicians, Inc., object to the plaintiff's, Robert McCann, July 27, 2017 request to amend his complaint to allege two new specifications of negligence by Dr. Babiarz. The defendants claim that the amended allegations do not relate back to the current allegations of the complaint and are therefore time-barred. In addition, the defendants argue that the amendment should not be allowed because it will unfairly prejudice them at this late date.
The plaintiff responds by arguing that the amended allegations simply expound on the current allegations regarding Dr. Babiarz, and therefore do relate back to the plaintiff's timely filed claims of medical malpractice. He also argues that the defendants were aware at least as early as March of the plaintiff's expert opinion that Dr. Babiarz violated the standard of care as set forth in the proposed amendment. Consequently, they cannot credibly claim to be surprised by the amendment. The plaintiff further argues that the defendants are not prejudiced because they have yet to conclude the depositions of the plaintiff's experts, and have yet to disclose their own experts. For the reasons set forth below, the defendants' objection is overruled.
II. Discussion
The plaintiff's complaint arises out of his treatment at the Southington Care Center (the " Care Center") for rehabilitation services following a left total hip arthroplasty at Hartford Hospital. The complaint alleges that the plaintiff was admitted to the Care Center on or about September 15, 2012. The complaint further alleges that as a result of the negligence of Dr. Babiarz and the staff of the Care Center the plaintiff suffered a severe left hip hematoma that had to be opened and drained by surgery. Paragraph 15 of the complaint alleges eleven specific ways in which Dr. Babiarz was negligent and departed from the applicable standard of care. While most of the allegations relate to Dr. Babiarz's failure to take appropriate actions in response to the plaintiff's elevated INR levels, some of the allegations are more broad. For example, paragraph 15(a) alleges that Dr. Babiarz was negligent " in that he knew or should have known that due to the plaintiff's recent hip surgery the plaintiff was at a greater risk for hemorrhaging into the surgical site, yet took no steps to prevent such hemorrhaging."
As noted above, the proposed amended complaint seeks to add two additional specifications of negligence as to Dr. Babiarz. The proposed paragraph 15(a) alleges that Dr. Babiarz was negligent " in that he failed to adequately review the Hartford Hospital records that were provided to Southington Care Center upon Mr. McCann's admission in order to ascertain the correct dosage of Coumadin that Mr. McCann was taking prior to his admission to the Southington Care Center." Paragraph 15(b) alleges negligence in that Dr. Babiarz " failed to obtain an accurate medical history for his patient and instead, relied on a nurse to specify the correct dosage of Coumadin that he then prescribed for Mr. McCann without first reviewing the Hartford Hospital records that had been provided to the defendant Southington Care Center, which would have informed him of the mistaken entry in the Physician's Orders regarding the dosage of Coumadin." Paragraph 16 in both the current and proposed complaint alleges that Dr. Babiarz's departure from the standard of care resulted in the plaintiff developing the left hip hematoma.
The current paragraph 15(a) is renumbered as paragraph 15(c) in the proposed amendment.
The defendants claim that the new allegations regarding Dr. Babiarz's failure to adequately review the plaintiff's medical history at the time he was admitted to the Care Center is different from the current complaint's focus on Dr. Babiarz's failure to take action to address the plaintiff's rising INR levels days after he was admitted to the Care Center. Consequently, the allegations do not relate back to the current complaint and are therefore time-barred. The court is not persuaded.
Our Supreme Court recently addressed the relationship back doctrine in a case with facts substantially similar to those here. In Briere v. Greater Hartford Orthopedic Group, P.C., 325 Conn. 198, 157 A.3d 70 (2017) the plaintiff generally alleged that the defendant physician violated the standard of care by not properly managing or performing the plaintiff's spinal surgery. " 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." Id., at 201. The defendants argued that the allegations regarding the retractor blade were materially different than the allegations regarding the skull clamp, and, therefore, did not relate back to the original complaint.
Before addressing the defendants' argument, the Court set forth the law relating to application of the relation back doctrine. " The relation back doctrine has been well established by this court . . . 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 . . .
" 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 . . . [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 . . .
" 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 . . . 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 . . .
" 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 . . ." (Emphasis in original) (Internal quotation marks omitted; citations omitted.) Id., at 207-10.
The court then acknowledged that its prior decisions on relation back have not provided trial courts with as much clarity as possible. The Court then provided the following guidance. " [I]n 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 [of] 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.
" 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." (Emphasis in original.) Id., at 210-11.
Applying the above test to the allegations of the original and proposed complaints, the Supreme Court affirmed the decision of the Appellate Court, which had reversed the trial court's decision that denied the plaintiff's request to amend based on the defendants' relation back argument. In doing so, the Supreme Court noted that the original complaint was not limited to allegations relating to the skull clamp. " While count one of the original complaint does focus on improper use of the skull clamp, read as a whole it includes more general allegations that Kruger failed to properly perform the surgery." Id., at 213. The court also found that " [t]he retractor blade allegations do not contradict the theory that Kruger improperly used medical instruments during surgery. Instead, they constitute a change in and addition to an act of negligence, which is permitted under the relation back doctrine. Specifically, the single transaction or occurrence that constituted the cause of action was negligent use of medical instruments during the plaintiff's spinal surgery in the operating room by Kruger, and this negligence caused the plaintiff to suffer quadriparesis." Id., at 214.
Applying the Supreme Court's analysis to the current and proposed complaints here, the court reaches the same conclusion. While the current complaint focuses mostly on Dr. Babiarz's failure to address the plaintiff's rising INR levels, the allegations of the current complaint are not limited to such allegations. In particular, paragraph 15(a) of the complaint broadly alleges that Dr. Babiarz was negligent " in that he knew or should have known that due to the plaintiff's recent hip surgery the plaintiff was at a greater risk for hemorrhaging into the surgical site, yet took no steps to prevent such hemorrhaging." This allegation is similar to the broad allegation in Briere that Kruger failed to properly perform the surgery. The proposed allegation that Dr. Babiarz was negligent in his review of the plaintiff's medical history simply sets forth an additional way in which Dr. Babiarz took no steps to prevent the plaintiff from hemorrhaging. In this way, the plaintiff has done no more than properly amplified or expanded what he has already alleged.
Furthermore, the defendants' argument notwithstanding, the new proposed allegations do not contradict the allegations of the current complaint. Read as a whole, the complaint alleges that the plaintiff's INR levels elevated because his Coumadin dosage was incorrect and his condition was not properly monitored by the defendants. The complaint specifically alleges that Dr. Babiarz knew or should have known that the plaintiff was at an increased risk of hemorrhaging because of his surgery and suffered a hematoma because Dr. Babiarz took no steps to prevent the hemorrhaging. Those steps include not just responding to an elevated INR, but also monitoring the plaintiff's Coumadin dosage to reduce the chance that the INR level would rise in the first place. As was the case in Briere, the plaintiff's allegations as to Dr. Babiarz, including the proposed amendment, are all part of a single transaction or occurrence--medically treating and supervising the plaintiff's care while he went through rehabilitation at the Care Center.
This conclusion is supported by the relevant factors identified by the Supreme Court in Briere . The original and new allegations involve the same actor--Dr. Babiarz. The alleged events occurred during the same period of time--September 15, 2012 to September 24, 2012. They occurred at the same location--the Care Center. They resulted in the same injury--the left hip hematoma. They allege substantially similar types of behavior--failure to monitor and address the plaintiff's condition. They most likely require the same types of evidence and experts. The plaintiff's standard of care expert, Dr. Fried, was disclosed in March to testify as to the alleged deviations from the standard of care, including those alleged in the proposed amendment. The defendants have yet to designate any experts either as to the current allegations or the proposed allegations. While the defendants baldly assert that the amendment will require additional depositions and experts, they have failed to provide any detail as to why they would need more than one liability expert to respond to Dr. Fried. As to the additional depositions, the defendants identify two or three witnesses, " perhaps more, " from Hartford Hospital who have knowledge of the orders and medical records Hartford Hospital sent to the Care Center. Such witnesses would be purely foundational and likely would be needed for the allegations of the current complaint regarding the plaintiff's baseline INR and his prescribed medication when he arrived at the Care Center.
Finally, the court is mindful of the Supreme Court's holding that the current and proposed complaint should be construed broadly and realistically as opposed to narrowly and technically. The allegation in paragraph 15(a), read broadly and realistically, certainly captures the specific allegations in the proposed amendment. In this regard it is worth noting that the allegation of paragraph 15(a) is pled as an alternative basis for a finding of negligence and not as dependent on the allegations regarding Dr. Babiarz's failure to address the plaintiff's rising INR level.
For the reasons set forth above, the court concludes that the proposed amendment relates back to the current complaint and is not time-barred.
The defendants also argue that the court should exercise its discretion and deny the plaintiff's request to amend because it is too late and allowing the amendment now will unduly prejudice the defendants. They also claim that the amendment will unduly delay the trial.
As to prejudice, other than a need to conduct an additional two or three depositions, the defendants have identified no specific prejudice. As to a delay of the trial, on September 7, 2017, the court (Sheridan, J.) continued the trial until January 17, 2018. Thus, the trial has been delayed for reasons unrelated to the plaintiff's motion. Furthermore, the defendant's claim is disingenuous given that it appears that they have yet to disclose a single expert witness. Finally, the defendants have known about the deviations of the standard of care alleged in the proposed amendment since at least March 31, 2017 when the plaintiff disclosed Dr. Fried to testify about them. The proposed amendment can hardly be the surprise the defendants claim. For these reasons, the defendants' claims of undue prejudice and delay are rejected.
III. Conclusion
For all of the foregoing reasons, the defendants' objection to the plaintiff's request to amend is overruled.