Renee Hall et al. v. New Britain General Hospital et al. (2011)

MEMORANDUM OF DECISION ON DEFENDANT GROVE HILL'S MOTION FOR SUMMARY JUDGMENT

The issue in this case is whether the allegations in the original complaint of the plaintiff can be understood to make a claim against employees and agents of the defendant Grove Hill Medical Center other than Dr. Karen Haverly, who was also named as an individual defendant in the case.   After the commencement of this action, the plaintiff and Haverly executed a Covenant Not to Sue and Confidentiality Agreement, and the plaintiff withdrew the case against Haverly, and also withdrew against New Britain General Hospital.   Grove Hill argues that the Covenant acts as a release of Grove Hill, since no other employee or agent of Grove Hill was specifically named in the original complaint nor any amended complaint that was filed within the statute of limitations period.

The plaintiff objects to summary judgment.   The plaintiff does not suggest that the Covenant with Haverly does not also release Grove Hill for Haverly's actions.   The plaintiff argues that if the allegations in the earlier complaint can fairly be construed as applying to persons other than Haverly who were employees or agents of Grove Hill, then Grove Hill is not entitled to summary judgment in this case.

Put another way, if the allegations in the original complaint, and the subsequent amendments, fairly read and construed, appear to apply only to Haverly as the sole employee or agent of Grove Hill implicated in the malpractice, then the Covenant with Haverly may act as a release of her principle Grove Hill, and Grove Hill is entitled to summary judgment.

THE STANDARDS FOR SUMMARY JUDGMENT

In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.  Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).   The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, such that he is entitled, under principles of substantive law, to a judgment as a matter of law.  Id.

In ruling on a motion for summary judgment, the court's function is not to decide the issues of material fact, but rather to determine whether any such issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).   Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts.  Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).

THE ALLEGATIONS IN THE COMPLAINT AS TO GROVE HILL

The plaintiff Renee Hall gave birth to a healthy baby on January 5, 2006, at New Britain General Hospital.   The plaintiff was discharged from the hospital on January 8, 2006.   She suffered a massive stroke on January 13, 2006, alleged to have been brought on by preeclampsia, a serious blood pressure disorder, which had been diagnosed but not properly managed by the defendants.

The Original Complaint:  February 27, 2008

The medical malpractice action was commenced on February 27, 2008,¹ after obtaining a statutory ninety-day extension, per Conn. Gen.Stat. § 52–190a.   The named defendants were New Britain General Hospital (“NBGH”), Dr. Karen Haverly, and Grove Hill Medical Center.

The Second Count of the Complaint was brought against Karen Haverly and Grove Hill Medical Center.   The Second Count incorporates allegations in the First Count (against NBGH) that allege that Grove Hill was a professional corporation of physicians that provided medical services for a fee, ¶ 4, and that “Renee Hall was a patient of Grove Hill which, itself and through its agents, employees, and apparent agents, undertook to provide her with care and treatment ․” ¶ 5.   Karen Haverly was alleged to be a physician specializing in obstetrics and gynecology who was an agent and/or employee of Grove Hill. ¶ 6.   Renee Hall sought and received care relative to her pregnancy from “Haverly and Grove Hill.” ¶ 7.   Renee Hall was admitted to NBGH on January 5, 2006, with a diagnosis of preeclampsia. ¶ 8.   Labor was induced and she delivered her son on January 6, 2006. ¶ 10.   The plaintiff was discharged home on January 8, 2006. ¶ 14.   She was readmitted to NBGH on January 13, 2006, with severe hypertension and symptoms of a stroke.

In the Second Count, paragraph 17 reads as follows:

The care and treatment rendered to Renee Hall by defendants Haverly and Grove Hill, its agents, employees, and/or apparent agents during plaintiff's hospitalization for eclampsia and the labor and delivery of her son, and for the plaintiff's subsequent postpartum care, fell below the applicable standard of care in one or more of the following ways:

a. in failing to adequately and properly assess and monitor the plaintiff's blood pressure and hypertension following the birth of her son on January 6, 2006 ․ [b. through i.]

[j.] 2 in failing adequately to respond to, investigate, and work-up, the plaintiff's postpartum complaints of headache.

Paragraph 18 alleges that “[a]s a result of the negligence of defendants Haverly and Grove Hill, Renee Hall was caused to suffer ․ serious, painful, and permanent injuries and loss.”

The First Amended Complaint (# 108):  June 9.2008

In the June 9, 2008, amended complaint, the counts against Haverly and Grove Hill are separated into two distinct counts.   In the Third Count against Grove Hill, the plaintiff states:

¶ 18. The care and treatment rendered to Renee Hall by defendant Grove Hill, its agents, employees, and/or apparent agents during plaintiff's hospitalization for eclampsia and the labor and delivery of her son, and for the plaintiff's subsequent postpartum care, fell below the applicable standard of care in one or more of the following ways:  a. in failing to adequately and properly assess and monitor the plaintiff's blood pressure and hypertension following the birth of her son on January 6, 2006, ․ [b. through i.]

j. in failing adequately to respond to, investigate, and work-up, the plaintiff's postpartum complaints of headache.

Aside from correcting the sequence of the letters preceding the subparagraphs, the only change in the Third Count is that Karen Haverly's name is omitted entirely from the allegations of negligence against Grove Hill, though she is made the subject of the Second Count.

The Second Amended Complaint (# 149):  February 8, 2010

There are two changes in the Third Count from the June 9, 2008, complaint to the February 8, 2010, complaint:  the term “following the birth of her son” in the relevant paragraphs is followed by the words “on January 6, 2006 and until January 13, 2006,” instead of merely “on January 6, 2006;” and a new subparagraph is added as ¶ .k. The new subparagraph alleges that Grove Hill was negligent “in discharging the plaintiff on January 8, 2006, when the same was unsafe in light of the plaintiff's post partum preeclampsia, elevated blood pressure and hypertension.”

The Third Amended Complaint (# 186):  December 1, 2010

It is in this iteration of the complaint that the plaintiff first specifies in the pleadings which agents or employees of Grove Hill besides Haverly were involved in her care.   She alleges:

¶ 9 ․ [the plaintiff's] magnesium sulfate [for high blood pressure] was discontinued ․ and she was thereafter transferred to the post partum unit under the orders and care of Jeffrey Mihalek MD, an employee of Grove Hill.

¶ 10. The plaintiff remained in said post partum unit on January 8, 2006, ․ under the care of Kirsten Kerrigan, M.D., an employee of the defendant Grove Hill.

¶ 11. At approximately 1:30 p.m. on January 8, 2006, the plaintiff was discharged home with her baby with instructions to schedule a six week post partum visit.   Said discharge was ordered by Kirsten Kerrigan, MD ․

¶ 13. On January 11, 2006, the plaintiff contacted Grove Hill Medical by telephone from home and reported to Gail Fowler, an employee of Grove Hill, that she was experiencing headaches.   Ms. Fowler did not advise her to seek immediate medical attention.

In addition in paragraph 16, the plaintiff refines certain of the allegations concerning the negligence of Grove Hill. The defendant has characterized these as “new” allegations;  the plaintiff has characterized these as elaborations on previously alleged facts.³

THE LAW OF LANGUAGE CONSTRUCTION AND THE RELATION–BACK DOCTRINE

Grove Hill argues that since the employees and agents of Grove Hill have now been more particularly identified in the Third Amended Complaint as Mihalek, Kerrigan, or Fowler, but have not been individually sued, Grove Hill cannot be held vicariously liable for any negligent acts on their part, so Grove Hill is entitled to judgment.   While it is true that these alleged agents of Grove Hill have not been named as individual defendants, the court can discern no authority that requires that a plaintiff sue each agent involved in a negligent act in order to hold in the agent's principle as a defendant.   The doctrine of respondeat superior counsels otherwise.   As for the Covenant Not to Sue, while an application of that doctrine may convert the agreement with Haverly into a release of Grove Hill for Haverly's acts, see Alavarez v. New Haven Register, Inc., 249 Conn. 709, 722–23 (1999), it does not serve to release Grove Hill for the acts of any other employees or agents to which the complaints refers.   Indeed the Covenant is carefully crafted to confine its terms only to the acts of Haverly, and not to the acts of Grove Hill or any other agent of Grove Hill. See Sims v. Honda Motor Co., 225 Conn. 401 (1993).

Contrary to the argument of Grove Hill that the original complaint contained “no reference [to] these alleged agents and did not even allude to a time frame when they were involved with the plaintiff's care and treatment,” Defendant's Brief in Support of Summary Judgment, Feb. 14, 2011, page 2, the court finds otherwise.   It is true that the original complaint contained no reference to these individuals by name.   But the original complaint contained sufficient reference to employees and/or agents of Grove Hill, without naming them, and did indicate in general terms what acts of negligence were involved.

Moreover the allegations all relate to the same time frame, a relatively short, discrete period from January 6 through January 13, 2006, and cannot reasonably be read to apply to any other period or set of circumstances than that alleged in the first, second and third iteration of the complaint.   The plaintiff progressively identifies the persons involved from Grove Hill more precisely and sets forth the allegations of negligence with greater precision.   But the later complaints do not allege any facts or causes of action that can fairly be described as new, in a way that prevents a proper reading of them as relating back to the allegations in the original complaint.   The amended complaints contain permissible amplifications of allegations in earlier complaints, relating all the way back to the original complaint, without alleging any new and different factual situation or cause of action.   See Deming v. Nationwide Mutual Insurance Co., 279 Conn. 745, 775 (2006).

The defendant urges the court to parse the phrases in each complaint in a highly technical manner, such that the allegations against Grove Hill can only be read as involving conduct in the immediate aftermath of the birth on January 6. The defendant suggests, for example, that “following the birth of her son on January 6, 2006,” be confined to mean only events that occurred on January 6 itself, rather than the more expansive post-partum period up until the plaintiff's stroke a week later.   The court declines to adopt such a crimped reading of the phrase.   Rather the court must read the complaint “broadly and realistically, rather than narrowly and technically.”  Id., 778.

The same is true as to the refinement of the specifications of negligence.   Having read all of the changes in wording among the four complaints, the court cannot fairly consider any of the wording changes to allege new facts of any significance;  certainly no new cause of action is alleged and certainly all of the allegations arise out of the same operative set of facts.   The plaintiff has consistently alleged that there was a mismanagement of the her blood pressure condition after she gave birth, that the defendant failed to recognize and treat it as a serious condition, that the failure of the defendant fell below the standard of care, and that the plaintiff suffered serious injury as a result.   The plaintiff may or may not be able to prove these allegations at trial, but it is plain what she has alleged, and those allegations have never differed in any material way from those that were originally alleged.   The allegations in the December 2010 complaint relate back to the allegations in the original complaint such that the court cannot say that the statute of limitations is implicated in any way.

THE CONVENANT NOT TO SUE

Though the law of Alvarez v. New Haven Register, Inc., supra, is implicated in this case—that a general release of an employee (agent) usually serves to release the employer (principle)—the facts of Alvarez differ in one crucial way.   In Alvarez, all of the allegations regarding the employer's negligence centered on the actions of the one employee who was released.   Here though the defendant contests it mightily, the allegations against Grove Hill—from the original complaint to the present—are not confined to the conduct of only one employee.   As discussed above, the original complaint, fairly read, did not exclude the conduct of all agents and employees except Haverly.   As discovery progressed, the plaintiff was able to insert in subsequent complaints the specific agents of the defendant Grove Hill and the specific conduct in which they engaged that constituted the mismanagement of the plaintiff's post-partum care.

The Covenant Not to Sue does not speak at all to the acts of other employees and agents whose conduct is ascribed to Grove Hill.

CONCLUSION

The allegations in the complaints subsequent to the original complaint relate back to the original complaint.   The defendant is not entitled to summary judgment founded on the statute of limitations.   The Covenant Not to Sue executed between the plaintiff and Dr. Haverly does not, as a matter of law, release the defendant Grove Hill from liability for the acts of any other agents or employees.

The Motion for Summary Judgment is denied.

Patty Jenkins Pittman, Judge

FOOTNOTES

FN1. The plaintiff's Brief in Opposition to Summary Judgment misstates the date as February 27, 2007.   Plaintiff's Brief, April 14, 2011, page 6..  FN1. The plaintiff's Brief in Opposition to Summary Judgment misstates the date as February 27, 2007.   Plaintiff's Brief, April 14, 2011, page 6.

FN2. The last two subparagraphs are misidentified with out-of-sequence letters of the alphabet.   The court has substituted the appropriate letter in sequence..  FN2. The last two subparagraphs are misidentified with out-of-sequence letters of the alphabet.   The court has substituted the appropriate letter in sequence.

FN3. Without setting forth each of these in this opinion, here is an example.   In the earlier iterations of the complaint, the plaintiff alleged that Grove Hill was negligent “b. in failing to adequately and properly work up her elevated blood pressure and hypertension following the birth of her son on January 6, 2006;  [and] c. in failing to prescribe appropriate medications for her elevated blood pressure and hypertension ․” In the December 1, 2010, complaint, the plaintiff additionally alleges that the defendant Grove Hill was negligent in discharging the plaintiff on January 8, 2006, when the same was unsafe in light of the plaintiff's post partum preeclampsia, rising blood pressure and hypertension..  FN3. Without setting forth each of these in this opinion, here is an example.   In the earlier iterations of the complaint, the plaintiff alleged that Grove Hill was negligent “b. in failing to adequately and properly work up her elevated blood pressure and hypertension following the birth of her son on January 6, 2006;  [and] c. in failing to prescribe appropriate medications for her elevated blood pressure and hypertension ․” In the December 1, 2010, complaint, the plaintiff additionally alleges that the defendant Grove Hill was negligent in discharging the plaintiff on January 8, 2006, when the same was unsafe in light of the plaintiff's post partum preeclampsia, rising blood pressure and hypertension.

Pittman, Patty Jenkins, J.