Lori Gilson et al. v. Daniel Kase, M.D. et al. (2014)

MEMORANDUM OF DECISION

The plaintiffs, Lori Gilson and Brenden Gilson, have requested leave to amend their second revised complaint dated August 22, 2012.   The defendant, Charlotte Hungerford Hospital (“the Hospital”), has filed a timely objection.   The parties engaged in oral argument at the short calendar on January 21, 2014.

The plaintiffs allege in their second revised complaint that on February 26, 2010, the plaintiff, Lori Gilson, was told by her obstetrician that she had a mass in her abdomen and needed to have a CT scan.   The plaintiffs alleged that on March 10, 2010 Lori Gilson “went to the office of the defendants, Daniel Kase M.D. (“Kase) and Charlotte Hungerford Hospital located in Torrington, Connecticut for a CT Scan of her abdomen.”   The plaintiffs allege that Kase mis-read the CT scan and, as a result, Lori Gilson suffered permanent injury.

The second revised complaint is in four counts.   The first count is Lori Gilson against Kase, Torrington Radiologists, P.C. (“Torrington”) and Advanced Medical Imaging of Northwest Connecticut (“Advanced”).   Lori Gilson alleges that Kase was “a servant, agent, apparent agent and/or employee” of Torrington, Advanced, and the Hospital.   The plaintiff further alleges that Kase, Torrington, and Advanced fell below the recognized standard of care for similar health care providers in treating the plaintiff.

The second count of the second revised complaint is Lori Gilson against the Hospital only.   It incorporates the allegations of the first count and adds an allegation that the Hospital's treatment of Lori Gilson fell below the standard of care for similar health care providers.   The third and fourth counts are corresponding consortium claims by Brenden Gilson.

The plaintiffs seek leave to amend the second revised complaint by adding a new paragraph to all of the counts which asserts that “Torrington Radiologists, P.C. and Advanced Medical Imaging of Northwest Connecticut, LLC are agents or servants of Charlotte Hungerford Hospital and/or are under the control and direction of Charlotte Hungerford Hospital.”

Charlotte Hungerford Hospital objects to the proposed amendment on the ground that it raises new causes of action based on a different set of facts from those contained in the second revised complaint.   Therefore, it argues that the proposed amendment would not relate back to the original complaint and would be barred by the applicable statute of limitations.¹  The plaintiffs rely on the “relation back doctrine” and argue that the proposed amendment is just a clarification of the existing allegations and is not a new cause of action.

“The relation back doctrine has been well established by this court.   A cause of action is that single group of facts which is claimed to have been brought about by 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 that establish the existence of that right and that delict constitute the cause of action ․ A change in, or 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 where an entirely new and different cause of action is stated ․ Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims ․” Alswanger v. Smego, 257 Conn. 58, 64–65 (2001), citing Barrett v. Danbury Hospital, 232 Conn. 242, 264 (1995).  “Essentially, in determining whether the relation back doctrine applies to an amended pleading ․ [the court should] inquire whether the amendment expands or amplifies the original facts alleged in support of a cause of action, or whether the amendment presents a new and different factual situation that would require the presentation of different evidence.”   (Citations omitted.   Internal quotation marks omitted.)   Sheldon v. Lawrence & Memorial Hospital, Superior Court, judicial district of New London, Docket No. CV–09–5012761 (April 17, 2013).

Here, the plaintiff's original cause of action against Charlotte Hungerford Hospital was based solely upon the agency of the defendant, Dr. Daniel Kase. Under the proposed amendment, the cause of action against Charlotte Hungerford Hospital would also be based upon the agency of Torrington and Advanced.   This is not simply a clarification or amplification of the original facts.   The proposed amendment presents a new and different causes of action that would require the presentation of different evidence.   The plaintiff would be required to prove vicarious liability based on two additional agency relationships that were not part of the original case.   The Hospital would be required to defend itself against these two new theories of liability.   This defense would require new and different facts which the defendant would not have been required to present under the original allegations of the complaint.   For these reasons, the new causes of action would not relate back to the original complaint.   Because these new theories were alleged after the statute of limitations expired, the court must sustain the Hospital's objection to the plaintiff's request for leave to amend.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. The statute of limitations for damages caused by malpractice of physician or hospital is two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered except that no such action may be brought more than three years from the act or omission complained of.   The act or omission took place on March 1, 2010.   The request for leave to amend the second revised complaint was dated November 11, 2013, more than three years from that date.   Therefore, the amendment should not be allowed unless it “relates back” to April 12, 2012, the date the suit was commenced.   See, Barrett v. Danbury Hospital, 232 Conn. 242, 263, note 13 (1995)..  FN1. The statute of limitations for damages caused by malpractice of physician or hospital is two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered except that no such action may be brought more than three years from the act or omission complained of.   The act or omission took place on March 1, 2010.   The request for leave to amend the second revised complaint was dated November 11, 2013, more than three years from that date.   Therefore, the amendment should not be allowed unless it “relates back” to April 12, 2012, the date the suit was commenced.   See, Barrett v. Danbury Hospital, 232 Conn. 242, 263, note 13 (1995).

Pickard, John W., J.