Pekera v. Purpora

• Decision Date: 12 April 2005
• Docket Number: No. 17133.,17133.
• Citation: 869 A.2d 1210,273 Conn. 348
• Court: Connecticut Supreme Court
• Parties: Daniel R. PEKERA, Administrator (Estate of Charlene Walker), et al. v. David PURPORA et al.

869 A.2d 1210

273 Conn. 348

Daniel R. PEKERA, Administrator (Estate of Charlene Walker), et al. v. David PURPORA et al.

No. 17133.

Supreme Court of Connecticut.

Argued December 6, 2004.

Decided April 12, 2005.

Cynthia C. Bott, Milford, with whom, on the brief, was John D. Jessep, Bridgeport, for the appellants (plaintiffs).

Jeffrey R. Babbin, New Haven, for the appellee (defendant Allan Rodrigues).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

ZARELLA, J.

The principal issue in this certified appeal¹ is whether the trial court properly declined to consider the plaintiffs'² purported request to amend their medical malpractice complaint against the defendant,³ Allan Rodrigues, to include an allegation of failure to inform the decedent of the consequences of her refusal to be intubated after the court had granted the defendant's motion for summary judgment and rendered judgment thereon. Although the plaintiffs discussed the possibility of amending the complaint in their reply to the summary judgment motion, they did not file a request for permission to amend before the judgment was rendered. On appeal, the Appellate Court determined, inter alia, that the trial court properly had declined to consider the matter because the plaintiffs had failed to file a request for leave to amend their complaint and had not established that the court abused its discretion. Pekera v. Purpora, 80 Conn.App. 685, 693, 836 A.2d 1253 (2003). We affirm the judgment of the Appellate Court.

The following relevant facts and procedural history are set forth in the opinion of the Appellate Court. "[O]n April 5, 1996, the patient⁴ was admitted to Griffin Hospital [in Derby] because she was suffering from severe diabetic ketoacidosis and pneumonia. The defendant, a pulmonologist, was asked to examine the patient in the early hours of the following day. The defendant immediately determined that she needed an endotrachial intubation in order to receive ventilatory support. He also immediately summoned her husband to the hospital to discuss the seriousness of the patient's condition. . . .

"The patient repeatedly refused to be intubated, despite repeated efforts to persuade her to do so, both by the defendant and [the patient's] husband. When, at the urgent importuning of her husband, she finally consented to this procedure, she was promptly intubated, but it was too late. She died an hour later." Id., at 689, 836 A.2d 1253.

"The plaintiffs . . . filed a sixteen count malpractice complaint⁵ naming five physicians, two professional corporations and Griffin Hospital as defendants. The complaint alleged that each of [the defendants] negligently had engaged in conduct that had caused the [patient] . . . to suffer injury and to die at Griffin Hospital on April 6, 1996. . . .

"The malpractice allegations against the defendant were set out in five specifications in count nine of the plaintiffs' complaint.⁶ During pretrial proceedings, however, the plaintiffs withdrew each allegation except that stated in paragraph 5(c) of count nine, namely, that the defendant `failed to timely intubate and properly manage the [patient's] pulmonary condition . . . .'" Id., at 687-88, 836 A.2d 1253.

"The plaintiffs could not proceed with this claim without the support of expert testimony. . . . In his deposition, the plaintiffs' expert witness, Daniel M. Goodenberger, a pulmonologist, did not fault the timeliness of the intubation. He did not question the defendant's decision not to intubate the patient without her consent. It was, however, his view that the patient would have consented to the intubation earlier if the defendant had been more forceful in explaining to her the seriousness of her condition. Goodenberger stated that in his experience, `when patients are told that the alternative to a procedure such as this is death . . . they will accept it.' According to the expert, the defendant's care had been substandard because the defendant had not appreciated the seriousness of the patient's condition as soon as he should have and therefore had not advised the patient adequately of the risk of declining intubation." (Citations omitted.) Id., at 690, 836 A.2d 1253.

"The defendant filed a motion for summary judgment on two grounds. He asserted that (1) the plaintiffs' expert witness had not substantiated the plaintiffs' claim of malpractice as stated in paragraph 5(c) of count nine, and (2) the plaintiffs were not entitled to amend their complaint to conform to the expert's opinion that the defendant improperly had failed to inform the patient of the consequences of her refusal to be intubated.

"In their reply, the plaintiffs contested each of the defendant's claims. They argued that paragraph 5(c) of count nine, as drafted, encompassed a claim of failure to inform because, like the alleged failure to intubate in a timely manner, it arose out of the same factual circumstances. If that argument was unpersuasive, the plaintiffs requested the court's permission `to amend [their] complaint to include specific language relating to that claim so that the relation back analysis can be applied with a specific allegation.'

"The trial court granted the defendant's motion [for summary judgment]. It concluded that paragraph 5(c) of count nine neither expressly nor impliedly charged the defendant with failure to inform the patient of the risks of refusal to consent to intubation. It further concluded that it did not need to address the possibility of an amendment of the complaint because `there is no complaint left to amend.'

"In their appeal from the [trial court's] judgment . . . the plaintiffs claim [ed] that the court (1)[had] construed their complaint too narrowly and (2) should have permitted them to amend their complaint to include an allegation of failure to inform." Id., at 688-89, 836 A.2d 1253. The Appellate Court rejected both claims and concluded that the trial court properly had granted the defendant's motion for summary judgment on its merits. Id., at 692, 693, 836 A.2d 1253. This certified appeal followed.

The plaintiffs claim on appeal to this court that the Appellate Court (1) failed to recognize that the trial court erred as a matter of law, and (2) improperly concluded that the trial court did not abuse its discretion in declining to consider an amendment to their complaint.⁷

The plaintiffs first claim that the Appellate Court failed to recognize that the trial court erred as a matter of law in declining to consider an amendment to their complaint. They contend that the trial court had jurisdictionand authority to rule on an amendment and that its decision not to do so elevated form over substance. We disagree. When a trial court's decision is not based on its exercise of discretion but, rather, on a legal conclusion, our review is plenary, and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.⁸ E.g., Robinson v. Coughlin, 266 Conn. 1, 5, 830 A.2d 1114 (2003).

The rules that govern the amendment of a complaint are well established. Practice Book § 10-59 provides in relevant part: "The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein. . . during the first thirty days after the return day." Practice Book § 10-60(a) further 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 [Practice Book § 10-59] in the following manner:

"(1) By order of judicial authority; or

"(2) By written consent of the adverse party; or

"(3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party. . . and with proof of service endorsed thereon. . . ."

In the present case, the plaintiffs did not satisfy the applicable rules of practice because they did not file and serve upon the defendant a written request to amend their complaint with the amendment appended thereto. See Practice Book § 10-60(a). They merely argued in their reply to the defendant's summary judgment motion that a cause of action for the defendant's failure to inform the decedent of the consequences of her refusal to be intubated was encompassed within paragraph 5(c) of count nine and that, "[s]hould the court find it is not, [the] plaintiff[s] would request the court's permission to amend [their] complaint to include specific language relating to that claim so that the relation back analysis can be applied with a specific allegation." (Emphasis added.) This argument can only be construed to mean that, if the court found that a cause of action for failure to inform was not contained within paragraph 5(c) of count nine, the plaintiffs then would request the court's permission to amend the complaint so that such a claim could be considered.

Although the parties discussed the relation back doctrine in connection with the timeliness of a possible amendment to the complaint in their respective memoranda on the defendant's summary judgment motion, neither party maintained, or even implied, that an amendment to the complaint was then before the court. Both parties initially directed their arguments to whether paragraph 5(c) of count nine alleged a cause of action for the defendant's failure to inform the decedent about the consequences of her refusal to be intubated. They then addressed whether the two year statute of limitations for medical malpractice actions would permit the plaintiffs to amend their complaint if the court determined that paragraph 5(c), as written, did not encompass the claim. In fact, counsel for the defendant expressly stated at the summary judgment hearing that, "[i]n terms of a pleading, a revised pleading, at this point, would not be timely. It's not formally before the court. There is no request to file an...