Ellen Zoppo, Executrix of the Estate of Michael Zoppo v. Bristol Healthcare, Inc. dba Ingraham Manor (2014)

MEMORANDUM OF DECISION RE MOTION FOR PERMISSION TO AMEND THE COMPLAINT (# 150)

The plaintiff, Ellen Zoppo, Executrix of the Estate of Michael Zoppo, has filed a motion for permission to amend her complaint, in order to add a second count of recklessness.   The defendant, Bristol Health Care, Inc., dba Ingraham Manor, has filed an objection to the request on two grounds.   First, the proposed amended complaint does not relate back to the original complaint and therefore is barred by the two-year statute of limitations;  and second, the proposed amended complaint would be prejudicial because jury selection is scheduled for March 4, 2014, with the trial to begin shortly thereafter.   For the reasons stated below, the court grants the plaintiff's motion for permission to amend her complaint.

BACKGROUND

The original complaint, dated February 6, 2012, is in two counts.¹  The first count of the original complaint alleges that the decedent, Michael Zoppo, was admitted to the defendant rehabilitation facility “to undergo physical therapy to regain strength.”  (Complaint, ¶ 4.)   While at the facility, Mr. Zoppo fell and sustained a subaraclinoid hemorrhage that resulted in his death on February 23, 2012.  (Complaint, ¶ 7, 8.)

The plaintiff alleges that the defendant was negligent in treating Mr. Zoppo in failing to properly assess his high fall risk, failing to assess his fall risk upon admission to the facility, failing to re-assess his fall risk every fifteen minutes during the initial 72 hours of admission, failing to assess him when his status was changed from bed rest to “OOB” to chair, failing to assess him as a fall risk, and failing to follow the Clinical Gerontological Nursing Care Standards by failing to collect health care information and failing to diagnose and treat Mr. Zoppo.  (Complaint, ¶ 9.)

The plaintiff's motion for permission to amend the complaint was filed on February 7, 2014.   In her motion, she represents the testimony procured at the deposition of the defendant's agent, Melissa Sloss, RN, provided a basis to allege a count of recklessness against the defendant.²  In this proposed count, the plaintiff alleges that:

1. “The defendant failed to provide Mr. Zoppo with a patient sitter, despite the ability to do the same, after he demonstrated that he was a high fall risk, thereby knowingly violating the professional standard of care, in order to save operating costs associated with employing patient sitters or designating current staff to act as a patient sitter for Mr. Zoppo.”  (Second count, ¶ 9.)

2. “Upon admittance to Ingraham Manor, the defendant failed to assign Mr. Zoppo to a room with the highest level of patient to staff ratio, in order to save operating costs associated with occupying a bed in these areas so to keep the area open for future patients to be admitted, thereby knowingly violating the professional standard of care.”  (Second count, ¶ 10.)

3. “Upon admittance, the defendant was aware that critical medical information necessary for Mr. Zoppo's treatment as not procured in Mr. Zoppo's admission to Ingraham Manor yet failed to make efforts obtain [sic] said information thereby knowingly violating the professional standard of care.”  (Second count, ¶ 11.)

4. “Subsequent to Mr. Zoppo falling, the defendant created, amended and manipulated documents purporting to reflect the care provided by the defendant prior to his fall with the intent to obfuscate any civil liability therewith.”  (Second count, ¶ 12.)

5. “Subsequent to Mr. Zoppo falling, the defendant and its agent conspired to create a cohesive story to cover up any violations of the standard of care with the intent to obfuscate any civil liability in connection with the care the defendant provided Mr. Zoppo.”  (Second count, ¶ 13.)

The defendant argues that the new recklessness count alleges new facts in support of a new and different cause of action, and therefore are time barred by the statute of limitations.   Furthermore, permitting these allegations would create material prejudice to the defendant due to the closeness to the trial date.   The plaintiff argues that the proposed amendment is based upon the same core facts, and merely an amplification of the negligence claim and does not allege a new and different intentional tort.   Furthermore, she contends that the defendant has had notice of all facts underlying the second count since the commencement of the action so there is no material prejudice to the defendant if the court permits the amendment of the addition of the second count.

DISCUSSION

The factors to be considered by the court as to whether to permit an amendment to the complaint include delay, fairness to the opposing party.   See Mathiessen v. Vanech, 266 Conn. 822, 849, 836 A.2d 394 (2002);  Practice Book § 10–60.   The court has wide discretion in granting or denying an amendment before, during or after trial;  see Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 799, 945 A.2d 955 (2008);  provided the amendment does not allege a new cause of action that would be barred by the 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).   Thus, the central issue before the court here is whether the additional count of recklessness in the amended complaint relates back to the original complaint, and therefore, is timely under the statute of limitations as it pertains to a wrongful death action.³  The policy reasons underlying the relation back doctrine are to “[ensure] that the parties receive fair notice while at the same time allowing parties who have complied with the applicable statute of limitations the benefit of expanding upon existing claims.”  Sherman v. Ronco, 294 Conn. 548, 556, 985 A.2d 1042 (2010).

“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 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.”  (Citation omitted;  internal quotation marks omitted.)  Id., 555.

In Sherman, the plaintiff's original complaint alleged that while the plaintiff was a student in middle school, he was sexually assaulted by a teacher, Eugene Ronco, and alleged negligent supervision as to the school principal, James Ellis.   In the amended substitute complaint, the plaintiff added counts against Ellis for assault and battery, reckless assault and battery, and intentional infliction of emotional distress.   The trial court granted Ellis' summary judgment motion as to those counts on grounds that the new counts did not relate back to the original complaint, but set forth entirely different and new causes of action and theories.

The Supreme Court summarized the test as to whether the relation back doctrine applies to an amended pleading.  “ ․ [W]e 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.”  Id., 556.   Because the facts alleged in the amended substitute complaint presented a “very different factual scenario than that presented in the original complaint,” the Supreme Court concluded that the trial court had properly granted summary judgment as the relation back doctrine did not apply to the amended substituted complaint and, therefore, those counts were barred by the statute of limitations.

The defendant in this case argues that this case should yield the same result as in Sherman.   The court does not agree.   Although the allegations in the original complaint focused on the failure to act, the failure to assess, failure to follow nursing standards, the allegations in the second count merely amplify what has already been alleged in support of the cause of action.

This case is akin to Gurliacci v. Sharp, 218 Conn. 531, 547, 590 A.2d 914 (1991).   The initial complaint in Gurliacci alleged that the defendant had operated his motor vehicle while intoxicated.   The plaintiff then sought to amend the complaint to add allegations that the defendant had acted wilfully, wantonly and maliciously or outside the scope of his employment in his negligent operation of his automobile.   The Supreme Court concluded that the amendment to the original complaint related back, and was not time barred, therefore the trial court properly granted a motion to strike the special defense of statute of limitations.

In comparing the allegations of the original complaint with those in the amended complaint, the second count of recklessness reiterates the negligence claim based upon the defendant's failure to properly assess the decedent's fall risk, and amplifies the ways in which that failure to assess resulted in further acts of negligence.   Whether the defendant acted knowingly in its alleged failure to properly assess the decedent's fall risk, and/or did so in order to save costs does not set forth an entirely new and different factual situation or different cause of action, nor does it set for a new claim for liability, but merely expands the allegations of the wrongful death cause of action.⁴

The defendant argues in its response to plaintiff's reply to defendant's objection to plaintiff's motion to amend the complaint that the addition of the second count would unfairly prejudice the defendant.   This prejudice arises from “having to defend against a claim it had no notice of until three weeks before trial.”   The court disagrees.   The defendant had full notice of the facts underlying the recklessness count through the original complaint as well as through the opinion provided in support of the complaint.  (Original complaint, Exhibit A.)

CONCLUSION

The motion for permission to amend the complaint is granted.

Swienton, J.

FOOTNOTES

FN1. The court granted the defendant's motion to dismiss the second count on April 16, 2012, without objection..  FN1. The court granted the defendant's motion to dismiss the second count on April 16, 2012, without objection.

FN2. The plaintiff sought and was granted an extension of the scheduling orders in order to take the deposition of Ms. Sloss on January 22, 2014.   In order to accommodate her schedule, the deposition did not take place until January 28, 2014..  FN2. The plaintiff sought and was granted an extension of the scheduling orders in order to take the deposition of Ms. Sloss on January 22, 2014.   In order to accommodate her schedule, the deposition did not take place until January 28, 2014.

FN3. See General Statutes § 52–555(a)..  FN3. See General Statutes § 52–555(a).

FN4. Whether the plaintiff will be able to sustain her burden of proving these allegations is a wholly different matter..  FN4. Whether the plaintiff will be able to sustain her burden of proving these allegations is a wholly different matter.

Swienton, Cynthia K., J.