157 A.3d 70 (Conn. 2017), SC 19576, Briere v. Greater Hartford Orthopedic Grp., P.C.

Docket NºSC 19576
Citation157 A.3d 70, 325 Conn. 198
Opinion JudgeROGERS, C. J.
Party NameDONALD BRIERE ET AL. v. GREATER HARTFORD ORTHOPEDIC GROUP, P.C., ET AL
AttorneyLorinda S. Coon, with whom was John W. Sitarz, for the appellants (defendants). Ron Murphy, with whom was Roger Kaye, for the appellees (plaintiffs). Roy W. Breitenbach and Michael J. Keane, Jr., filed a brief for the Connecticut Orthopaedic Society as amicus curiae. Claire V. Jackson and Michael...
Judge PanelRogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js. ROGERS, C. J. In this opinion PALMER, EVELEIGH, McDONALD and ESPINOSA, Js., concurred. ROBINSON, J., concurring. In this opinion PALMER, EVELEIGH, McDONALD and ESPINOSA, Js., concurred. CONCUR BY: ROBINSON ROBINSON, J., con...
Case DateApril 11, 2017
CourtSupreme Court of Connecticut

Page 70

157 A.3d 70 (Conn. 2017)

325 Conn. 198

DONALD BRIERE ET AL.

v.

GREATER HARTFORD ORTHOPEDIC GROUP, P.C., ET AL

SC 19576

Supreme Court of Connecticut

April 11, 2017

Argued December 15, 2016

Appeal from Superior Court in the judicial district of Middlesex, Holzberg, J., Aurigemma, J., Domnarski, J.

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[Copyrighted Material Omitted]

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Affirmed.

SYLLABUS

The plaintiffs, D and his wife, sought to recover damages from the defendants, K, an orthopedic surgeon, and his orthopedic practice group, for, inter alia, personal injuries that D sustained during a spinal surgery performed by K. The plaintiffs' complaint included claims that K had failed to properly plan and perform the surgery through the use of an instrumentality in his control. More specifically, it included detailed allegations of negligence due to K's improper usage of a skull clamp during the surgery, which resulted in D suffering quadriparesis. The plaintiffs thereafter disclosed a neurosurgeon as an expert witness, who would testify that K had been negligent when he improperly placed a retractor blade during D's surgery. The plaintiffs then filed a request for leave to amend the complaint by removing the allegations related to the skull clamp and adding allegations that K had failed to properly apply a retractor blade during the surgery. The defendants objected to the amendment, claiming that the allegations regarding the retractor blade were new and did not relate back to the original complaint, and therefore, they were barred by the limitation period contained in the statute (§ 52-584) pertaining to medical malpractice actions, which had expired. The trial court sustained the defendants' objection to the proposed amendment, and subsequently granted their motion for summary judgment on the ground that the plaintiffs did not have an expert witness who would testify that the improper skull clamp usage caused D's injuries as alleged in the original complaint. Accordingly, the trial court rendered summary judgment in favor of the defendants, and the plaintiffs appealed to the Appellate Court. That court determined that the trial court improperly applied the relation back doctrine, concluding that the retractor blade allegations related back to the original theory that K was negligent during the surgery, as found in the allegations that K had failed to properly plan or to perform a safe and effective surgery. The Appellate Court therefore reversed the trial court's denial of the plaintiffs' request to amend their complaint and its subsequent summary judgment rendered in favor of the defendants. From the Appellate Court's judgment, the defendants, on the granting of certification, appealed to this court. Held that the Appellate Court properly concluded that the plaintiffs' amended complaint related back to their original complaint: reading the counts of the complaint together as a whole, the transaction or occurrence that formed the basis of the plaintiffs' claim was that K improperly used medical instruments during the spinal surgery, resulting in D's injury, and therefore, the plaintiffs adequately put the defendants on notice that their claim related to K's conduct during the surgery and, more specifically, his use of medical instruments during the surgery; furthermore, the new allegations that K improperly had used a retractor blade during D's surgery did not contradict the theory that K had improperly used medical instruments during the surgery, but, rather, they constituted a change in and addition to an act of negligence.

Lorinda S. Coon, with whom was John W. Sitarz, for the appellants (defendants).

Ron Murphy, with whom was Roger Kaye, for the appellees (plaintiffs).

Roy W. Breitenbach and Michael J. Keane, Jr., filed a brief for the Connecticut Orthopaedic Society as amicus curiae.

Claire V. Jackson and Michael G. Rigg filed a brief for the Connecticut Defense Lawyers Association as amicus curiae.

James J. Healy and Cynthia C. Bott filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js. ROGERS, C. J. In this opinion PALMER, EVELEIGH, McDONALD and ESPINOSA, Js., concurred. ROBINSON, J., concurring.

OPINION

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[325 Conn. 200] ROGERS, C. J.

In this certified appeal, we are tasked with clarifying the contours of the relation back doctrine, specifically as applied to medical malpractice claims.1 The plaintiff, Donald Briere,2 brought a cause of action against the defendants, Greater Hartford Orthopedic Group, P.C. (practice group), and David Kruger, an orthopedic surgeon, alleging medical malpractice during a spinal surgery resulting in the plaintiff suffering quadriparesis. After the expiration of the relevant statute of limitations, General Statutes § 52-584,3 [325 Conn. 201] the plaintiff sought to amend his complaint. Both the original and amended complaints included claims that Kruger failed to properly plan and to perform the surgery through the use of an instrumentality in his control. 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. The trial court denied the request to amend, narrowly construing the original complaint as limited to a claim of the negligent usage of the skull clamp and subsequently granted the defendants' motion for summary judgment because the plaintiff had abandoned the theory that negligent use of the skull clamp had caused his injury. The Appellate Court reversed the trial court's denial of the plaintiff's request to amend, broadly construing the original complaint as a claim of negligence in performing the surgery, which could be supported by either set of factual allegations. Briere v. Greater Hartford Orthopedic Group, P.C., 158 Conn.App. 66, 118 A.3d 596 (2015). The defendants advocate for this court to adopt the narrower approach used by the trial court and to reverse the judgment of the Appellate

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Court. We decline to do so and affirm the judgment of the Appellate Court.

The following facts and procedural history are relevant to this appeal. In November, 2009, the plaintiff initiated a cause of action against the defendants for injuries he suffered during a spinal surgery performed on May 21, 2008.[4] In count one of the complaint, the plaintiff alleged that Kruger had failed to plan or to [325 Conn. 202] perform a safe and effective operation. The plaintiff made additional allegations in count one that Kruger was negligent in his use of a skull clamp to secure the plaintiff during the surgery.5 At the time that he filed his complaint, the plaintiff also filed a petition for an automatic extension of the statute of limitations. The trial court granted the petition, extending the expiration of the statute of limitations from May 21, 2010 to August 19, 2010.

Six months before the expiration of the statute of limitations, the defendants filed a request to revise, in which they sought a more complete or particular [325 Conn. 203] statement of how Kruger had failed to plan or to perform a safe and effective surgery. The plaintiff objected to the request to revise, asserting that the allegations were not conclusory and that the proper mechanism to procure a more specific statement was through discovery. Prior to the expiration of the statute of limitations, the trial court, Holzberg, J., sustained the plaintiff's objection.

Subsequently, the plaintiff disclosed James Macon, a neurosurgeon, as an expert witness and indicated that Macon would testify that Kruger had been negligent when he improperly placed a retractor blade during surgery. The defendants

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deposed Macon five months after he was disclosed as an expert.

The plaintiff then filed a request for leave to file an amended complaint. In the proposed amended complaint, the plaintiff removed the allegations related to the skull clamp and added allegations that Kruger had failed to properly apply a retractor blade during surgery. The defendants objected to the request on the ground that the allegations concerning the retractor blade were new allegations and did not relate back to the original pleading, and therefore were barred by the statute of limitations. In a written memorandum of decision, the trial court, Aurigemma, J., sustained the defendants' objection.

Subsequently, the defendants moved for summary judgment on the ground that the plaintiff could not prove medical negligence under the original complaint because he had not disclosed an expert who could testify concerning the skull clamp. Prior to responding to the defendants' motion for summary judgment, the plaintiff filed a motion in limine asking the trial court to rule on whether it would admit Macon's expert testimony on the retractor blade theory at trial in light of the court's denial of the plaintiff's request to amend the [325 Conn. 204] complaint to include the retractor blade allegations. In response to the motion in limine, the trial court, Aurigemma, J., ruled that it would not admit Macon's testimony at trial. The plaintiff then filed a memorandum in opposition to the motion for summary judgment in which he argued that the trial court's denial of his request to amend and its ruling on the motion in limine were inconsistent with the trial court's previous ruling sustaining the plaintiff's objection to the defendants' request to revise, and that the rulings were fundamentally unfair. The plaintiff did not submit affidavits or other evidence that created a genuine issue of material fact concerning the...

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