Elaine Vitali v. LLP (2012)

RULING ON DEFENDANTS' OBJECTION TO PLAINTIFF'S REQUEST FOR LEAVE TO AMEND COMPLAINT (# 140)

This is a professional negligence case arising from the surgical removal of a cystic lesion of the plaintiff's parotid gland on May 10, 2006.   This action was commenced by way of a two-count complaint against the defendants Southern New England Ear, Nose, Throat & Facial Plastic Surgery Group, LLP and Paul L. Fortgang.   Paragraph five of each count of the original complaint contained the specifications of negligence.   On October 7, 2011, the plaintiff moved for leave to file an amended complaint seeking to add two sub-paragraphs to paragraph five of each count (# 136).   On November 10, 2011, the defendants filed an objection to the request for leave to amend the complaint, accompanied by a memorandum of law (# 140), to which the plaintiff replied on December 8, 2011 (# 143).   The court heard argument on January 9, 2012 and must determine whether the proposed additional specifications of negligence relate back to the original complaint.

The governing principles of law are well established.   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).   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).

To put it another way, 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.”  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.  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, 775–77, 905 A.2d 623 (2006).

In this case, the court must compare the proposed additions to the specifications of negligence with the negligence allegations contained in the original complaint.   There, in paragraph five of the second count, the plaintiff alleged that Dr. Fortgang was negligent in that he:  “a. failed to adequately and properly care for, treat, diagnose, monitor and supervise the plaintiff ․ for the surgical removal of a cystic lesion of the parotid gland;  b. failed to properly and adequately identify the facial nerve;  c. failed to properly and adequately protect the facial nerve from injury;  d. improperly cut the facial nerve;  e. failed to abort the operation when unable to identify the facial nerve;  f. failed to use a nerve monitor when unable to identify the facial nerve;  g. failed to call for assistance from an otolaryngologist for help in identifying and dissecting out the facial nerve;  [and] h. failed to anticipate pre-operatively that the location of the parotid tumor placed the plaintiff at higher risk for nerve injury.” ¹  The proposed amended complaint seeks to further allege that Dr. Fortgang “improperly identified the plaintiff's anatomy” and “improperly relied on the nerve stimulator.”

The operative theory of negligence, set forth in the fifth paragraph of the original complaint, was that Dr. Fortgang breached the standard of care applicable to the surgical removal of a cystic lesion of the parotid gland by failing to properly and adequately identify the location of the facial nerve and to protect it from injury during the course of the surgical procedure by engaging in certain acts and omissions.   The specifications of negligence in the original complaint focus on the issue of identifying the location of the plaintiff's facial nerve in light of the location of the parotid tumor.   Defense counsel stated at oral argument that the defendants have understood from the inception of this case that the underlying negligent conduct involved failing to identify the location of the plaintiff's facial nerve and agreed that theory implicates anatomy.   Construing the original complaint liberally, see DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 297 Conn. 142, the proposed allegation that Dr. Fortgang “improperly identified the plaintiff's anatomy” is well within the allegations of the original complaint and relates back.

The defendants maintain that the second proposed allegation, regarding Dr. Fortgang's reliance on a nerve stimulator, is an entirely new claim.   At oral argument, defense counsel agreed that Dr. Fortgang used a nerve stimulator during the course of the surgery and that defendants have been aware of that fact since the inception of this lawsuit.   According to plaintiff's counsel, a nerve stimulator is a device that a surgeon uses in ascertaining the location of nerve structures.   As the negligence claim in this case focuses on the issue of identifying the location of the facial nerve, the second proposed allegation likewise is well within the allegations of the original complaint, liberally construed, and relates back.

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, 291 Conn. 433, 484, 970 A.2d 592 (2009).   These criteria are met in this case.   The defendants have been on notice since the plaintiff disclosed her expert on July 21, 2010 that he intended to testify about improper identification of the plaintiff's anatomy and improper reliance on the nerve stimulator.   The defendants have had an opportunity to depose the plaintiff's expert.   Jury selection is presently scheduled to commence on November 5, 2012 so there is ample time for the defendants to respond to these allegations.  (See Defendants' Memorandum of Law in Support of Objection, III, p. 12 wherein the defendants indicated they contemplated filing a motion to dismiss pursuant to General Statutes § 52–190a if the court granted the request for leave to amend.)

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. In the first count, paragraph five, the plaintiff also alleged that Southern New England Ear, Nose, Throat & Facial Plastic Surgery Group, LLP was negligent because it “failed to provide physicians who possessed the requisite knowledge, skill, and experience to adequately and properly care for, treat, diagnose, monitor and supervise patients such as the plaintiff' and failed to promulgate and/or enforce rules, regulations, standards and protocols for the treatment of patients such as the plaintiff.”.  FN1. In the first count, paragraph five, the plaintiff also alleged that Southern New England Ear, Nose, Throat & Facial Plastic Surgery Group, LLP was negligent because it “failed to provide physicians who possessed the requisite knowledge, skill, and experience to adequately and properly care for, treat, diagnose, monitor and supervise patients such as the plaintiff' and failed to promulgate and/or enforce rules, regulations, standards and protocols for the treatment of patients such as the plaintiff.”

Lager, Linda K., J.