Opinion
HHDCV116026837S
11-17-2015
Ramon Padro v. Carlos Barba, M.D. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE OBJECTION TO PROPOSED AMENDED COMPLAINT (#159) AND OBJECTION TO SUPPLEMENTAL DISCLOSURE OF EXPERT (#163)
Sheila A. Huddleston, Judge.
Pending before the court are the defendants' objections to the plaintiff's proposed amended complaint and a supplemental expert disclosure. Both the proposed amended complaint (#158) and the supplemental disclosure (#157) assert that the defendants' alleged medical malpractice was a substantial cause of the death of Ramon Padro, the original plaintiff in this medical malpractice action. The first question presented by these objections is whether a claim for wrongful death resulting from alleged medical malpractice relates back to a claim for personal injuries resulting from the same alleged medical malpractice, allowing a plaintiff to avoid the statutory bar for a wrongful death claim first asserted more than five years after the act or omission complained of. If the amended complaint does relate back to the original complaint, then the second question is whether the court should deny the requested amendment and supplemental disclosure on equitable grounds because of the additional delay and expense that defending against the amendment will entail.
The first question presents an issue of law. The parties have not cited, and the court has not found, any Connecticut appellate authority that directly addresses this question. Several superior court decisions, however, have held that a wrongful death action may relate back to a previously filed personal injury action if the same negligent acts are alleged. See, e.g., Glander v. Licht, Superior Court, judicial district of Danbury, Docket No. CV-96-0322773-S, (July 24, 2000, Moraghan, J.); Reilly v. Porter, Superior Court, judicial district of Fairfield, Docket No. CV-92-0291680 (August 7, 1997, Skolnick, J.) (20 Conn. L. Rptr. 263); Hand v. Clark, Superior Court, judicial district of Litchfield, Docket No. 0052022 (February 28, 1992, Pickett, J.) (6 Conn. L. Rptr. 123); Bunnell v. Thomas A. Edison, Inc., 17 Conn.Supp. 467, 469 (1950). The court has considered the foregoing cases in the light of principles articulated in Supreme Court decisions involving wrongful death claims, on the one hand, and the relation back doctrine, on the other hand. Applying those principles here, the court concludes that the wrongful death claim in the proposed amendment does relate back to the medical malpractice claim that is currently pending because it arises from the same claims of negligence as did the original medical malpractice claim.
The second question--whether the amendment and the supplemental disclosure should be rejected because of delay and prejudice to the defendant--requires this court to exercise its discretion. Considering all the circumstances, the court concludes that the amendment and supplemental disclosure should be allowed. Accordingly, the objection to the proposed amended complaint and the objection to the supplemental disclosure are overruled. The defendants will be granted a reasonable continuance to supplement discovery as needed to avoid any potential prejudice.
Procedural and Factual Background
On February 9, 2011, Ramon Padro sought and obtained a 90-day extension for bringing a medical malpractice action under General Statutes § 52-190a(b). He commenced this action on November 14, 2011. In the original complaint, the plaintiff alleged that on February 9, 2009, Dr. Barba negligently attempted to perform a gastric bypass as treatment for multiple medical complications related to his weight. This unsuccessful surgery led to post-operative infections that in turn led to further surgery in June 2009. Dr. Barba thereafter performed two surgical procedures on October 12, 2009, in one of which Padro's spleen was injured and had to be removed. The October 12, 2009 surgeries resulted in a lengthy hospitalization and a further rehabilitative period in an extended care facility. The plaintiff claimed to have sustained numerous injuries as a result of the first unsuccessful surgery, including but not limited to persistent and recurring infections, extended hospital stays for multiple surgical interventions to address the infections, the probability of future surgery, and a decreased life expectancy.
On January 11, 2013, the court entered scheduling orders that required disclosure of the plaintiff's experts by August 15, 2013, and set a trial date of April 17, 2014. On August 15, 2013, the plaintiff disclosed an expert, Steven Becker, a surgeon, and the defendants subsequently disclosed two experts before Dr. Becker's deposition. According to the defendants' objections, the defendants started Dr. Becker's deposition on March 19, 2014, but were unable to complete it on that date. At that deposition, the plaintiff's counsel indicated that he needed a continuance of the April trial date because of the plaintiff's health. On the following day he filed a motion for continuance, which was granted, and a new trial date of November 5, 2014 was assigned.
On May 23, 2014, the plaintiff's counsel filed a motion to modify the scheduling order so that he could disclose an additional expert, Vadeem Sherman, a surgeon of Houston, Texas. The defendants objected to the disclosure of Dr. Sherman. On June 18, 2014, before the defendants' objection could be heard, the plaintiff died.
The case came to a halt until a personal representative was appointed. The trial was continued to September 9, 2015. The plaintiff's counsel moved to substitute Padro's executor as plaintiff on November 18, 2014, and the motion was granted on December 8, 2014. At that time, the defendants' objection to the initial disclosure of Dr. Sherman was still pending. Assuming that October 12, 2009, was the date of the last allegedly negligent act, and considering the 90-day extension granted by the court, the plaintiff had until January 10, 2015, to commence an action for wrongful death pursuant to General Statutes § 52-555(a). No claim for wrongful death was brought within that time. On January 15, 2015, the court overruled the defendants' objection to the disclosure of Dr. Sherman.
The parties subsequently scheduled Dr. Sherman's deposition for May 27, 2015. On May 14, 2015, the plaintiff filed the proposed amended complaint and the supplemental disclosure of Dr. Sherman's opinion that the alleged malpractice likely was a substantial factor in bringing about Padro's death.
The defendants objected to both the proposed amended complaint and the supplemental disclosure. They argue that the wrongful death claim is barred by General Statutes § 52-555(a) and does not relate back to the original complaint. If the wrongful death claim is barred, then Dr. Sherman's supplemental opinion that the alleged malpractice substantially contributed to causing Padro's death is not relevant and should not be permitted. The plaintiff concedes that the wrongful death claim was filed outside the five-year limitation period for wrongful death actions but argues that it relates back to the original malpractice claim. Finally, the plaintiff argues that Dr. Sherman's supplemental opinion should not be precluded because it was provided to the defendants as soon as practicable under the circumstances and does not unduly prejudice them.
I
The Relation Back Doctrine
The defendants first argue that the proposed amended complaint is untimely. General Statutes § 52-555(a) creates a cause of action for " injuries resulting in death" but provides, in relevant part, that " no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no action may be brought more than five years from the date of the act or omission complained of." The plaintiff's proposed amended complaint was filed within two years of Padro's death but more than five years after the acts or omissions complained of. It is undisputed that the claim for wrongful death is barred by § 52-555(a) unless it is saved by the relation back doctrine.
The Supreme Court has held that " no action for wrongful death existed at common law or exists today in Connecticut except as otherwise provided by the legislature." Ecker v. West Hartford, 205 Conn. 219, 231, 530 A.2d 1056 (1987). " Where . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone . . . The courts of Connecticut have repeatedly held that, under such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised at any time, even by the court sua sponte, and may not be waived." (Citations omitted.) Id., 232. " Since § 52-555 creates liability where none formerly existed, the statute must be strictly construed and we are not at liberty to extend, modify or enlarge its scope through the mechanics of construction." Id., 233.
That the time limit in § 52-555 is substantive and jurisdictional, however, does not answer the question whether the amended complaint relates back to the original complaint, which was timely. The Supreme Court recently restated the principles of the relation back doctrine as follows: " [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, however, 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 right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action . . . 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." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 555, 985 A.2d 1042 (2010). " The policy behind . . . [the relation back doctrine] 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 limitation are intended to afford." (Citation omitted.) Gurliacci v. Mayer, 218 Conn. 531, 547, 590 A.2d 914 (1991).
The question here, then, is whether a " new and different cause of action" is stated when a plaintiff seeks to amend a medical malpractice action to assert a claim for wrongful death arising from the same alleged negligence as the antemortem injuries. The defendants argue that the original plaintiff in this case could not have asserted a wrongful death claim while he was still living, and therefore the wrongful death claim is a new cause of action. In support of this argument, they cite Dickerman v. New York, New Haven, & Hartford Railroad Co., 72 Conn. 271, 276, 44 A. 228 (1899), where the Supreme Court held that " [a]n independent cause of action which does not mature until after the commencement of the suit cannot be made the basis of an additional count or supplemental pleading in an action at law, even though it sprung out of the transaction set forth in the original pleadings."
However plausible the defendants' argument may sound in the abstract, it is inapplicable here. Dickerman stands for the proposition that " the nonexistence of a cause of action at law when the suit is brought is a fatal defect which cannot be cured by the accrual of a right of action while the suit is pending." Walter H. Goodrich & Co. v. Friedman, 92 Conn. 262, 264, 102 A. 607 (1917). In other words, an action void at its inception cannot be brought to life by later events. Dickerman does not address the situation presented here, where the plaintiff's cause of action in medical malpractice was not premature. The original plaintiff in this action alleged negligent conduct by the defendants that had already occurred and had already caused him harm before the action was brought. The question here is whether the wrongful death claim is a separate and distinct cause of action from the medical malpractice action that preceded it. The answer to this question is that our wrongful death statute--unlike those in many other states--does not create a new cause of action based on the death itself but merely adds an element of damages to a cause of action that belonged to the decedent for the wrongs inflicted.
The original complaint in Dickerman alleged that a taking of the plaintiff's property had occurred. That complaint was filed after the railroad commissioners ordered the defendant railroad to make certain changes to a grade crossing--changes that the plaintiff claimed would effect a taking of his land. However, when the complaint was filed, the defendant railroad had not yet done anything to effectuate the order, and the plaintiff had therefore sustained no harm. More than ten years later, the plaintiff attempted to amend his complaint. The court concluded that the original complaint did not state a cause of action and that there was, in effect, nothing to be amended.
As stated in Ecker v. West Hartford, supra, 205 Conn. 231, there was no cause of action at common law for wrongs resulting in the death of a person. The earliest statute creating a right to recover for the death of a person was Lord Campbell's Act, formally known as the Fatal Accidents Act of 1846 (9 and 10 Victoria ch. 93). Congress and many American states soon adopted wrongful death statutes patterned on Lord Campbell's Act. See Farley v. New York, New Haven & Hartford Railroad Co., 87 Conn. 328, 336, 87 A. 990 (1913). Under statutes patterned on Lord Campbell's Act, the right of action where death results from injuries is " entirely independent of and unrelated to any which the deceased might have had in life. It is not a continuation of, or incidental to, any right of action existing in favor of anybody prior to the death . . . It is a new thing which springs into existence upon the death. It is independent of every other right of action, and different in its theory, quality and object from every other. It does not rest upon the basis of an injury suffered by the deceased's estate; its foundation is the loss sustained by certain persons designated as beneficiaries of the recovery." Kling v. Torello, 87 Conn. 301, 304, 87 A. 987 (1913). In Connecticut and a few other states, however, the wrongful death statute is based, not on the loss to the survivors, but on the injury to the decedent himself. See id.
Under our wrongful death statute, the " cause of action which the executor or administrator is permitted to pursue is not one which springs from the death. It is one which comes to the representative by survival. The right of recovery for the death is as for one of the consequences of the wrong inflicted upon the decedent." (Internal quotation marks omitted.) Chase v. Fitzgerald, 132 Conn. 461, 467, 45 A.2d 789 (1946). " By our wrongful death statute (General Statutes § 52-555), death is made an element of damage for which recovery may be obtained pursuant to the procedure specified in that statute. But the statutory right of action belongs, in effect, to the decedent, and to the decedent alone . . . [T]he cause of action . . . [authorized by the statute] is a continuation of that which the decedent could have asserted had he lived and to which the death may be added as an element of damage." (Internal quotation marks omitted.) Foran v. Carangelo, 153 Conn. 356, 360, 216 A.2d 638 (1966).
The court noted in Foran that the availability of damages for death itself exist only because of the wrongful death statute, General Statutes § 52-555, and not because of the survival of actions statute, General Statutes § 52-599, because " no person, during his lifetime, can possess an action or right of action embracing, as elements of damage, his own death or any of its direct consequences." Foran v. Carangelo, supra, 153 Conn. 360 n.2. It nevertheless plainly held that " [t]he cause of action . . . [authorized by the statute] is a continuance of that which the decedent could have asserted if he had lived and to which the death may be added as an element of damage." (Internal quotation marks omitted.) Id., 360.
This principle was most cogently explained in Kling v. Torello, 87 Conn. 301, 304, 87 A. 987 (1913). In that case, the original plaintiff alleged that he had been maliciously assaulted by the defendant and sought damages for the injuries he had sustained. The plaintiff died days after he commenced the action, and his personal representative entered the action with a substituted complaint that added a claim for wrongful death. In considering whether the wrongful death claim was a new cause of action, the court observed: " The original and amended complaint differ from each other in only one particular of possible significance. That arises from the added allegation that death had resulted from the injuries inflicted by the defendant. The former averred that these injuries were so severe that the plaintiff was in danger of death therefrom; the latter that death had resulted." Id., 304. " When one, as the result of injuries inflicted, suffers during life, and death later results, there are not two independent rights of action. There is but one liability, and that is for all the consequences of the wrongful act including the death." Id., 306. " The new event is not regarded as one which creates a cause of action, but one which has a bearing upon the award of damages." Id. " The right of action which was being pursued under the substituted complaint had accrued when the action was begun, and there was no prosecution of a right of action which did not accrue until death ensued." Id., 310.
In this case, as in Kling, the allegations of negligence in the original complaint and in the proposed amended complaint are nearly identical. The proposed amended complaint differs from the original complaint only in its allegation that the defendants' negligence was a substantial factor in causing his death, and in ensuing paragraphs that change the tense and identify the executor as the substituted plaintiff. The original complaint in this case alleged that the plaintiff sustained a diminished life expectancy as a result of the defendants' negligence, just as the original complaint in Kling had alleged that the plaintiff was at risk of death as a result of the defendant's assault in that case.
Because the allegations in the proposed amended complaint do not alter the cause of action alleged in the original complaint, but merely add an additional claim of injury, with its attendant damages, the proposed amended complaint relates back to the original complaint.
II
Equitable Considerations
It remains to consider whether the amendment should be barred on equitable grounds. " While our courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. 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 motion to amend is addressed to the trial courts discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court." (Citations omitted; internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 128, 788 A.2d 83 (2002). The defendants argue that the amendment and supplemental expert disclosure should be rejected because they will cause extreme prejudice to the defendants. In the circumstances presented here, the court disagrees.
The plaintiff's death occurred on June 18, 2014. The plaintiff's counsel moved for leave to substitute his executor on November 18, 2014. While this was perhaps somewhat longer than desirable, it was within the six months allowed for substitution of a party plaintiff under General Statutes § 52-599(b). The court granted leave to substitute the plaintiff's executor as plaintiff on December 8, 2014, and overruled the defendants' objection to the initial disclosure of Dr. Sherman on January 15, 2015. The plaintiff's counsel represents that the plaintiff had been hospitalized on several occasions in the months preceding his death, and that as soon as the plaintiff learned that Dr. Sherman would be permitted to testify, the plaintiff's counsel provided him with additional records to review related to those hospitalizations. The plaintiff represents that the supplemental disclosure and proposed amended complaint were disclosed within a week of the plaintiff's receipt of Dr. Sherman's opinion that Padro's death was causally related to the defendants' malpractice.
The defendants argue that, at least at the time the objection to Dr. Sherman's supplemental disclosure was filed, they had not received all the records that Dr. Sherman had reviewed. The plaintiff responds that the defendants were provided with the records as they became available. When the supplemental disclosure was made, trial was then four months away. The trial has been further delayed by the time required for argument on and the issuance of this decision regarding the defendants' objections. The defendants have thus had several additional months to obtain Padro's records and to prepare to depose Dr. Sherman. A further continuance of the trial, currently scheduled to begin on November 19, 2015, will be necessary in any event if discovery was not completed during the pendency of these objections. Such continuance will allow the defendants time to complete any discovery made necessary by the amendment. While the delay is regrettable, it does not appear to have resulted from negligence on the part of the plaintiff and is not unduly prejudicial. The defendants have been on notice of the plaintiff's claims of negligence since at least 2011, when this suit was first filed, and those allegations are unchanged by the amended complaint. Accordingly, the objections to the proposed amendment and to the supplemental disclosure of Dr. Sherman are overruled.
The type of wrongful death statute at issue is significant in considering whether a subsequent claim for death does or does not relate back to an earlier personal injury action based on the same alleged wrongs. " The cases seem to turn on the question whether the amendment to include a claim for wrongful death introduces a new and distinct cause of action. If it is considered to do so, the cause of action in the amendment will be held to have been barred. But if it does not set up a new and distinct cause of action, it would be considered by the courts to relate back to the date of the commencement of the personal injury action and therefore not to be barred by the statute of limitations." S. Speiser & J. Rooks, 2 Recovery for Wrongful Death (4th Ed. 2005) § 13.55. See also " Right to amend pending personal injury action by including action for wrongful death after the statute of limitations has run against independent death action" 71 A.L.R.3d 933.