Miller v. Fishman

• Decision Date: 10 July 2007
• Docket Number: No. 26884.,26884.
• Citation: 925 A.2d 441,102 Conn.App. 286
• Court: Connecticut Court of Appeals
• Parties: Gabriana MILLER et al. v. Stephen FISHMAN et al.

925 A.2d 441

102 Conn.App. 286

Gabriana MILLER et al. v. Stephen FISHMAN et al.

No. 26884.

Appellate Court of Connecticut.

Argued January 5, 2007.

Decided July 10, 2007.

Joshua D. Koskoff, Bridgeport, with whom was Cynthia C. Bott, Milford, for the appellants (plaintiffs).

Steven V. Manning, Bridgeport, with whom were Donna R. Zito, and, on the brief, Michael G. Rigg, Hartford, for the appellee (defendant Stephen Fishman).

SCHALLER, ROGERS and WEST, Js.

SCHALLER, J.

In this medical malpractice action, the plaintiffs, Gabriana Miller and her parents, Georgiana Miller and Aaron Scott Miller, individually and on behalf of Gabriana Miller, appeal from the decisions of the trial court to render summary judgment in favor of the defendant Stephen Fishman¹ and to deny their request for leave to file a second amended complaint. On appeal, the plaintiffs claim that the summary judgment should be reversed because the court (1) improperly failed to take their proposed amendment into account in ruling on the defendant's motion for summary judgment and (2) abused its discretion in denying their request to amend their complaint.² We reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

The record reveals the following facts and procedural history. On May 27, 1999, the minor plaintiff suffered a permanent brachial plexus injury to her left shoulder during birth. On May 21, 2001, the plaintiff parents commenced this action individually and on behalf of their daughter, broadly alleging negligence and lack of informed consent against the defendant, an obstetrician and gynecologist. Following several requests to revise, the operative pleading, the first amended complaint dated February 5, 2003, was filed by the plaintiffs.³ In count one of their amended complaint, the plaintiffs alleged that the minor plaintiff's injury was caused by the defendant's negligence in failing to diagnose and treat properly the plaintiff mother's gestational diabetes, high blood pressure and the presence of meconium in her amniotic fluid. In count two of their amended complaint, the plaintiffs further alleged that the minor plaintiff's injury was due to the defendant's failure to obtain the informed consent of the plaintiff mother through disclosure of the risks of a vacuum assisted delivery in a case of gestational diabetes. It is undisputed that the plaintiff mother did not have gestational diabetes, high blood pressure or meconium in her amniotic fluid.

On February 19, 2004, the defendant filed a motion for summary judgment, asserting that there was no evidence that the plaintiff mother had gestational diabetes, high blood pressure or meconium in her amniotic fluid when he first treated her on May 27, 1999, or that the defendant failed to diagnose these conditions. The defendant further asserted that the plaintiffs lacked expert testimony to support their claims that the delivery complications were the result of the defendant's negligence with respect to these conditions. In their objection to the summary judgment motion, the plaintiffs cited the need for additional discovery and indicated that they subsequently would amend their complaint to set forth fully their allegations of negligence. The court granted a continuance of the defendant's motion.

On May 27, 2005, the defendant filed a renewed motion for summary judgment, reasserting that the plaintiffs lacked evidence and expert testimony to support the allegations in their operative complaint. On July 13, 2005, following the deposition of the plaintiffs' expert, Lawrence S. Borow, an obstetrician and gynecologist, the defendant filed a supplemental memorandum of law in support of his summary judgment motion, arguing that Borow's testimony did not support the allegations of the operative complaint. The plaintiffs' objection to the defendant's motion for summary judgment was submitted on July 22, 2005.

On July 14, 2005, after obtaining new counsel,⁴ the plaintiffs filed a request for leave to amend their complaint to conform their allegations against the defendant to the facts of their case as had been revealed through discovery. In their proposed second amended complaint, the plaintiffs contended, inter alia, that the defendant negligently failed to estimate the size and weight of the infant adequately and properly, failed to evaluate the quality of the mother's labor, improperly used a vacuum extractor and failed to manage the complication of shoulder dystocia properly. The proposed amendment further alleged that the defendant failed to obtain the informed consent of the plaintiff mother as to the use of a vacuum extractor. The defendant submitted his objection to the request for leave to file an amended complaint on July 19, 2005.

The court, Miller, J., granted the defendant's motion for summary judgment on August 8, 2005. The plaintiffs filed a motion for reconsideration and reargument on August 10, 2005, which the court denied. That same day, the court, Langenbach, J., denied the plaintiffs' request for leave to file an amended complaint. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiffs claim that the court improperly failed to take their proposed amendment into account in ruling on the defendant's motion for summary judgment. We conclude that under the facts and circumstances of this case, the court abused its discretion.

In their objection to the defendant's motion for summary judgment, the plaintiffs argued that the defendant's motion was addressed to the operative complaint and, therefore, should be denied as moot because a request to amend the complaint had been filed. Despite this argument, the court granted the defendant's motion for summary judgment without considering the plaintiffs' proposed amendment. Specifically, the court stated that "[t]he plaintiffs' attempt . . . to amend their complaint has had no impact whatsoever on this court's consideration of this motion. . . . The defendant is clearly entitled to a decision on his motion based on the pleadings as they now stand, not on the pleading which [the] plaintiffs would like to see become the operative complaint." (Citations omitted.) The court rendered summary judgment upon concluding that the plaintiffs could not support the theories of liability set forth in their operative complaint because "[a]ll of the allegations of wrongdoing against [the defendant], as set forth in the first two counts of the operative complaint, are founded on the allegations concerning the plaintiff mother's gestational diabetes and high blood pressure, as well as the alleged presence of meconium in the amniotic fluid."

It is well settled that whether to allow an amendment to the pleadings rests within the discretion of the trial court. See, e.g., Franc v. Bethel Holding Co., 73 Conn.App. 114, 132, 807 A.2d 519, cert. granted on other grounds, 262 Conn. 923, 812 A.2d 864 (2002) (appeal withdrawn October 21, 2003); see also Practice Book § 10-60.⁵ The court's discretion, however, is not unfettered; it is a legal discretion subject to review. See Cook v. Lawlor, 139 Conn. 68, 71, 90 A.2d 164 (1952). "The trial court's discretion imports something more than leeway in decision making and should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice." (Internal quotation marks omitted.) Costanzo v. Mulshine, 94 Conn.App. 655, 662, 893 A.2d 905, cert. denied, 279 Conn. 911, 902 A.2d 1070 (2006).

In the present case, the court had before it the plaintiffs' request to amend and the defendant's objection thereto at the time that it ruled on the defendant's motion for summary judgment. In ruling on the motion for summary judgment without considering the pending request to amend, the court declined to exercise its discretion with respect to the plaintiffs' request to amend. The defendant's motion for summary judgment rested entirely on the plaintiffs' inability to support the theories of liability set forth in their operative complaint. Had the plaintiffs been allowed to amend their complaint to conform to the facts of their claims, which had been revealed in the course of discovery, the basis for summary judgment would have fallen away. In this respect, the present case is distinguishable from other cases in which requests to amend were filed in response to motions for summary judgment. For example, in LaFlamme v. Dallessio, 65 Conn.App. 1, 7, 781 A.2d 482 (2001), rev'd on other grounds, 261 Conn. 247, 802 A.2d 63 (2002), this court held that it was a proper exercise of the trial court's discretion to render summary judgment and thereafter to decline to act on a pending request to amend. In LaFlamme, however, the defendant's motion for summary judgment did not rest on a failure of the operative complaint that could be remedied through a proper amendment.

Although we recognize the concern that amendments could be used as tactical measures to avoid summary judgment, we conclude that in this case, in light of the potential impact of the request to amend on the motion for summary judgment, the court's failure to exercise its discretion constituted an abuse of discretion and resulted in an injustice to the plaintiffs. See Costanzo v. Mulshine, supra, 94 Conn. App. at 662, 893 A.2d 905. "Where . . . the trial court is properly called upon to exercise its discretion, its failure to do so is error." (Internal quotation marks omitted.) Higgins v. Karp, 243 Conn. 495, 504, 706 A.2d 1 (1998). We emphasize that we are not ruling that trial courts are required, in every instance, to consider requests to amend filed in response to motions for summary judgment. Our decision is confined by the particular facts and circumstances of this case.

Because the decisions with respect to the request to amend and the motion for summary judgment are interrelated, we must next consider whether the court...