Tina M. Chieco-Schwartz v. CVS (2011)

RULING ON OBJECTION TO PLAINTIFF'S REQUEST FOR LEAVE TO AMEND COMPLAINT (# 128)

This action, alleging professional negligence in one count, was originally brought by way of a complaint dated November 29, 2009, with a return date of December 15, 2009 (original complaint).   An amended complaint dated October 19, 2010 was filed on October 27, 2010 (first amended complaint).   On December 3, 2010, the plaintiff filed a Request for Leave to Amend and an Amended Complaint (proposed amended complaint) in which she sought to revise one allegation of injury and add two new allegations.¹  On December 20, 2010, the defendants objected to the plaintiff's request for leave to amend.   The court heard oral argument on February 7, 2011.

The sole ground for the defendants' objection is that the proposed amendments, see n.1, supra, set forth a new cause of action that does not relate back to the original complaint and is barred by General Statutes § 52-584.   Whether a claim is barred by the statute of limitations is a question of law.  Watts v. Chittenden, 115 Conn.App. 404, 409, 972 A.2d 770, cert. granted on other grounds, 293 Conn. 932, 981 A.2d 1077 (2009).   Since the negligent conduct that forms the basis of the cause of action in the original complaint was discovered on or about February 18, 2008 (the accrual date) ² and the request for leave to amend was filed on December 3, 2010, more than two years after that conduct, the proposed allegations would be beyond the statute of limitations unless they relate back to the allegations of the original complaint.   See New Hartford v. Connecticut Resource Recovery Authority, 291 Conn. 433, 483, n.38, 970 A.2d 592 (2009) (“if a party seeks to add new allegations to a complaint and a statute of limitations applicable to those allegations has run since the filing of the complaint, the party must successfully invoke the relation back doctrine before amendment will be permitted”).

Generally, a trial court has wide discretion to permit an amendment to a complaint, see Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 799, 945 A.2d 955 (2008), particularly when, as here, no trial date has even been set.   However, amendment is not allowed if the allegations state an entirely new cause of action that does not relate back to the original complaint and would be barred by the applicable statute of limitations if filed independently.  Miller v. Fishman, 102 Conn.App. 286, 298, 925 A.2d 441 (2007) cert. denied, 285 Conn. 905, 942 A.2d 414 (2008).  “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 ․ 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 where an entirely new and different factual situation is presented, a new and different cause of action is stated.”  Alswanger v. Smego, 257 Conn. 58, 64-65, 776 A.2d 444 (2001).

In this case, the operative facts of the original complaint, the first amended complaint and the proposed amended complaint are identical.   The complaints allege that although the plaintiff's treating physician prescribed 100 milligrams of doxycycline to be taken as one tablet, twice a day, the defendant Angelo Annunziato, a pharmacist employed by the defendant North Haven CVS, Inc., or someone under his supervision, affixed a label to the prescription bottle that stated the dosage as two tablets twice a day.  (Complaints ¶¶ 5, 6, 9, 10, 11.)   Subsequently, the plaintiff followed those directions and took “400 milligrams per day when only 200 milligrams per day had actually been prescribed” by her physician.  (Complaints ¶ 14.)  “After a period of several day, Plaintiff experienced drug toxicity and became critically ill, forcing her emergency hospitalization at Yale-New Haven Hospital on February 13, 2008 through February 16, 2008.”  (Complaints ¶ 15.)  “[T]he drug toxicity caused Plaintiff to suffer serious, painful and permanent injuries.”  (Complaints ¶ 16.)   In paragraph 18 of the original complaint and the first amended complaint, the injury resulting from the alleged negligence is specified as “drug toxicity that in turn caused” the plaintiff to suffer from the following:  “nausea, stomach cramping, headaches, blurred vision, bruising, vomiting, reduced urination, lethargy, fatigue, acute pancreatitis, elevated blood values, pain and suffering” (punctuation and internal numbering omitted) as well as a “general shock to her nervous system, upset and distress.”

In the proposed complaint, the plaintiff seeks to add the word “emotional” to qualify the allegations “upset and distress” in paragraph 18 and to add two new paragraphs, 19 and 20, alleging that as a result of suffering from acute pancreatitis she faces “an increased susceptibility to pancreatic cancer” and suffers from fear of that future harm.   Relying on Petriello v. Kalman, 215 Conn. 377, 576 A.2d 474 (1990), the defendants assert that through her proposed amendments the plaintiff is seeking to raise an entirely new claim for increased risk of a future injury.   The plaintiff maintains she is merely amplifying and expanding the claims of injury and damages that arise from her original cause of action.

“In seeking to enforce their right to individualized compensation, plaintiffs in negligence cases are confronted by the requirements that they must claim all applicable damages in a single cause of action ․” Id., 394.   As a result of this principle, Connecticut has long recognized that a plaintiff may seek to be compensated for the probable future consequences of injuries proximately caused by a defendant's negligence.   See Healey v. White, 173 Conn. 438, 443-45, 378 A.2d 540 (1977);  Johnson v. Connecticut Co., 85 Conn. 438, 441, 83 A. 530 (1912).   In Petriello, supra, 215 Conn. 397-98, the court rejected Healey 's “all or nothing” standard fo compensation for future injury and adopted the principle that “in a tort action, a plaintiff who has established a breach of duty that was substantial factor in causing a present injury which has resulted in an increased risk of future harm is entitled to compensation to the extent that the future harm is likely to occur.”   This standard for compensation for damages for future injuries based on present harm reflected the court's “goal of compensating tort victims fairly for all the consequences of the injuries they have sustained, while avoiding, so far as possible, windfall awards for consequences that never happen.”  (Emphasis supplied.)  Id., 394.   Contrary to the defendants' assertion here, Petriello did not create a new cause of action;  rather, it adopted a modern rule of compensation for the risk of future harm based on statistical probability which the court regarded “as preferable to our present practice of denying any recovery for substantial risks of future harm not satisfying the more likely than not standard ․ such a system is fairer to a defendant, who should be required to pay damages for a future loss based upon the statistical probability that such a loss will be sustained rather than upon the assumption that the loss is a certainty because it is more likely than not.”  Id., 397.³

A proposed-amendment to a complaint does not relate back if it involves “different sets of circumstances and depend[s] on different facts to prove or disprove the allegations of a different basis of liability.”  (Emphasis supplied.)  Sharp v. Mitchell, 209 Conn. 59, 73, 546 A.2d 846 (1988).   However, a proposed amendment does relate back if the allegations do not alter the general theory of liability alleged in the original complaint, that is, if the underlying negligent conduct is the same.   See DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 142-43, 998 A.2d 730 (2010);  Deming v. Nationwide Mutual Insurance Co., 279 Conn. 745, 776-77, 905 A.2d 623 (2006).   In this case, the proposed amended complaint alleges the same underlying, negligent conduct alleged in the original complaint and the first amended complaint-that the defendants' negligent dispensing and mislabeling of the plaintiff's prescription medication caused her to suffer from drug toxicity that resulted in injuries.   The proposed amended complaint amplifies the injuries sustained.   Accordingly, the court concludes that the proposed amended complaint relates back to the original complaint.

When, as here, the proposed amended complaint relates back, “the court should permit the requested supplementation if it will promote the economic and speedy disposition of the controversy between the parties, will not cause undue delay or trial convenience, and will not prejudice the rights of any other party.”   New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 484.   These criteria are met in this case.⁴

For the foregoing reasons, the defendants' objection to the plaintiff's request for leave to file an amended complaint is overruled.

LINDA K. LAGER, JUDGE

FOOTNOTES

FN1. The request (# 127) sought to amend the complaint as follows:1.  As to paragraph 18, by changing “upset and distress” to “emotional upset and distress;”2.  By adding paragraphs 19 and 20, alleging that her previously pled injuries, particularly acute pancreatitis, have/has created an increased susceptibility to pancreatic cancer and that Plaintiff suffered/suffers anxiety or fear that she will be afflicted with the disease.3. By renumbering the original paragraphs 19 and 20 to paragraphs 21 and 22..  FN1. The request (# 127) sought to amend the complaint as follows:1.  As to paragraph 18, by changing “upset and distress” to “emotional upset and distress;”2.  By adding paragraphs 19 and 20, alleging that her previously pled injuries, particularly acute pancreatitis, have/has created an increased susceptibility to pancreatic cancer and that Plaintiff suffered/suffers anxiety or fear that she will be afflicted with the disease.3. By renumbering the original paragraphs 19 and 20 to paragraphs 21 and 22.

FN2. A cause of action in negligence accrues when the plaintiff discovers actionable harm.  “[T]he accrual of a cause of action is a singular moment in time.”  Rosato v. Mascardo, 82 Conn.App. 396, 405, 844 A.2d 893 (2004).   In this case, the plaintiff was hospitalized between February 3 and 16, 2008 and discovered the defendants' alleged negligence on February 18, 2008.   For the purposes of General Statutes § 52-584 her cause of action began to accrue on that date..  FN2. A cause of action in negligence accrues when the plaintiff discovers actionable harm.  “[T]he accrual of a cause of action is a singular moment in time.”  Rosato v. Mascardo, 82 Conn.App. 396, 405, 844 A.2d 893 (2004).   In this case, the plaintiff was hospitalized between February 3 and 16, 2008 and discovered the defendants' alleged negligence on February 18, 2008.   For the purposes of General Statutes § 52-584 her cause of action began to accrue on that date.

FN3. Furthermore, contrary to defendants' assertions, Petriello did not modify the plaintiff's burden of proof with respect to damages.   In a case in which a plaintiff alleges an increased risk of harm, she still must prove the probability percentage of that increased risk by a fair preponderance of the evidence and the compensation that the jury may award must be limited “to the extent that the future harm is likely to occur.”   Petriello v. Kalman, 215 Conn. 377, 398, 576 A.2d 474 (1990).   See Drew v. William W. Backus Hospital, 77 Conn.App. 645, 669, 825 A.2d 810 (2003)..  FN3. Furthermore, contrary to defendants' assertions, Petriello did not modify the plaintiff's burden of proof with respect to damages.   In a case in which a plaintiff alleges an increased risk of harm, she still must prove the probability percentage of that increased risk by a fair preponderance of the evidence and the compensation that the jury may award must be limited “to the extent that the future harm is likely to occur.”   Petriello v. Kalman, 215 Conn. 377, 398, 576 A.2d 474 (1990).   See Drew v. William W. Backus Hospital, 77 Conn.App. 645, 669, 825 A.2d 810 (2003).

FN4. The defendants have been on notice since the plaintiff's July 14, 2010 discovery response of the plaintiff's claims of injury related to an increased risk of pancreatic cancer.   See Plaintiff's Reply to Defendants' Objection (# 129), p. 6. In light of the facts that the pleadings have not yet closed in this case, there is no claim to a trial list filed and no trial date scheduled, the defendants have ample time to conduct further discover on this issue and to prepare a defense to the plaintiff's claim' of increased risk of future harm..  FN4. The defendants have been on notice since the plaintiff's July 14, 2010 discovery response of the plaintiff's claims of injury related to an increased risk of pancreatic cancer.   See Plaintiff's Reply to Defendants' Objection (# 129), p. 6. In light of the facts that the pleadings have not yet closed in this case, there is no claim to a trial list filed and no trial date scheduled, the defendants have ample time to conduct further discover on this issue and to prepare a defense to the plaintiff's claim' of increased risk of future harm.

Lager, Linda K., J.