Donald BRIERE et al. v. GREATER HARTFORD ORTHOPEDIC GROUP, P.C., et al.

(Emphasis omitted.) Sherman v. Ronco , 294 Conn. 548, 554 n.10, 985 A.2d 1042 (2010).

The relation back doctrine has been well established by this court. Alswanger v. Smego , 257 Conn. 58, 64, 776 A.2d 444 (2001). There is a well settled body of case law holding that 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 ... it will [speak] as of the date when it was filed. ... 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 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. ... DiLieto v. County Obstetrics & Gynecology Group, P.C. , 297 Conn. 105, 140, 998 A.2d 730 (2010). (Emphasis in original; footnote omitted.) Finkle v. Carroll , 315 Conn. 821, 837-38, 110 A.3d 387 (2015).

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 .... Barrett v. Danbury Hospital , 232 Conn. 242, 263-64, 654 A.2d 748 (1995). (Internal quotation marks omitted.) Alswanger v. Smego , supra, 257 Conn. at 65, 776 A.2d 444. [I]n the cases in which we have determined that an amendment does not relate back to an earlier pleading, the amendment presented different issues or depended on different factual circumstances rather than merely amplifying or expanding upon previous allegations. Grenier v. Commissioner of Transportation , 306 Conn. 523, 560, 51 A.3d 367 (2012).

More specifically, where the proposed allegations promote a change in or an addition to a ground of negligence arising out of a single group of facts we have allowed use of the relation back doctrine. Gurliacci v. Mayer , 218 Conn. 531, 549, 590 A.2d 914 (1991) (new allegations did not inject two different sets of circumstances and depend on different facts ... but rather amplified and expanded upon the previous allegations by setting forth alternative theories of liability [citation omitted; internal quotation marks omitted] ); see DiLieto v. County Obstetrics & Gynecology Group, P.C. , supra, 297 Conn. at 139-43, 998 A.2d 730 (allegation that defendant physician failed to ensure that specific surgeon participated in surgery related back to allegation that defendant physician failed to communicate pathology results to that surgeon prior to surgery); Wagner v. Clark Equipment Co. , 259 Conn. 114, 119, 788 A.2d 83 (2002) (allegation that forklift was defective because backup alarm failed to sound when forklift was engaged in reverse did relate back to allegations that forklift was defective because it lacked, inter alia, backup alarm that sounded sufficiently distinct to warn plaintiff);

Barnicoat v. Edwards , 1 Conn.App. 652, 654, 474 A.2d 808 (1984) (allegations of different defects in house construction related back to other claims of defect in house construction in breach of contract claim); Miller v. Fishman , 102 Conn.App. 286, 299-300, 925 A.2d 441 (2007) (allegations describing specific manner in which defendant obstetrician delivered minor plaintiff and precise injuries minor plaintiff sustained related back to allegations that defendant negligently managed delivery of minor plaintiff), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008). On the other hand, where new allegations directly contradict those in the operative complaint we have held that they do not relate back to those in the operative complaint. Dimmock v. Lawrence & Memorial Hospital, Inc. , 286 Conn. 789, 806-808, 945 A.2d 955 (2008) (allegation that defendant surgeons used incorrect spinal fusion material during surgery contradicted, and therefore did not relate back to, allegation that surgeons should not have performed surgery at all on plaintiff); see also Alswanger v. Smego , supra, 257 Conn. at 61, 776 A.2d 444 (allegation of lack of informed consent regarding surgical residents participation in surgery did not relate back to allegation that defendant physician and defendant hospital had failed to disclose all material risks in connection with plaintiffs surgery, care and treatment); Keenan v. Yale New Haven Hospital , 167 Conn. 284, 285-86, 355 A.2d 253 (1974) (allegation of lack of informed consent to surgery did not relate back to allegation of negligence in performing surgery).

When comparing [the original and proposed amended] pleadings, we are mindful that, [i]n Connecticut, we have long eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. ... [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. ... Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension. ... Deming v. Nationwide Mutual Ins. Co. , [279 Conn. 745, 778, 905 A.2d 623 (2006) ].

Dimmock v. Lawrence & Memorial Hospital, Inc. , supra, 286 Conn. at 802, 945 A.2d 955.

We acknowledge that in our prior cases applying the relation back doctrine we perhaps have not provided as much clarity as necessary for the trial court to apply the doctrine consistently. After a careful review of our case law, it is apparent that in order to provide fair notice to the opposing party, the proposed new or changed allegation of negligence must fall within the scope of the original cause of action, which is the transaction or occurrence underpinning the plaintiffs legal claim against the defendant. Determination of what the original cause of action is requires a case-by-case inquiry by the trial court. In making such a determination, the trial court must not view the allegations so narrowly that any amendment changing or enhancing the original allegations would be deemed to constitute a different cause of action. But the trial court also must not generalize so far from the specific allegations that the cause of action ceases to pertain to a specific transaction or occurrence between the parties that was identified in the original complaint. While these guidelines are still broad, a bright line rule would not serve the purpose of promoting substantial justice for the parties. If new allegations state a set of facts that contradict the original cause of action, which is the transaction or occurrence underpinning the plaintiffs legal claim against the defendant, then it is clear that the new allegations do not fall within the scope of the original cause of action and, therefore, do not relate back to the original pleading. But an absence of a direct contradiction must not end the trial courts inquiry. The trial court must still determine whether the new allegations support and amplify the original cause of action or state a new cause of action entirely. Relevant factors for this inquiry include, but are not limited to, whether the original and the new allegations involve the same actor or actors, allege events that occurred during the same period of time, occurred at the same location, resulted in the same injury, allege substantially similar types of behavior, and require the same types of evidence and experts.

In the present case, the plaintiff alleged in paragraph 36 of count one of the original complaint that Kruger was negligent in one or more of the following ways:

"A. [He] failed to plan a safe and effective operation.

"B. [He] failed to perform a safe and effective operation.

"C. [He] failed to position [the plaintiff] safely and securely on the operating table; and/or

"D. [He] failed to make sure the skull clamp was safely and securely applied to [the plaintiffs] skull; and/or

E. [He] failed to make sure the locking device connecting the skull clamp to the [operating room] table was safely and securely applied; and/or F. [He] failed to make sure that [the plaintiffs] positioning [in the surgical table apparatus] was safe and secure; and/or

G. [He] failed to make sure that [the plaintiff] would not move during the surgery.

In support of his res ipsa locquitor claim, the plaintiff additionally alleged in paragraph 36 of count three of the original complaint that his injury could be presumed to be due to the defendants negligence because:

"A. The damage to [the plaintiffs] spinal cord at [C3 through C5] is ordinarily not seen in the course of surgery at [C6 through C7] in the absence of someones negligence.

"B. The injuries were caused by an instrumentality solely within the defendants control;

"C. The injury was not due to any voluntary action or contribution by [the plaintiff]; and

D. The explanation of the event is more accessible to the defendants than to [the plaintiff]. (Footnote added.)

In his proposed amended complaint, the plaintiff replaced the allegations of negligence in count one of the original complaint with the following allegations found in paragraph 45 of count one of the amended complaint:

"A. [Kruger] failed to plan a safe and effective operation, and/or

"B. [He] failed to perform a safe and effective operation, and/or

C. [He] failed to apply the retractor at [C3 through C4] properly, and/or D. [He] failed to apply the retractor at [C3 through C4] properly so that the blades would not shift when the retractor was opened.

"E. The operative note is not a reasonably complete and accurate account of what happened during surgery.

F. The discharge summary is not a reasonably complete and accurate account of what happened during [the plaintiffs] hospitalization.

The relevant allegations in the res ipsa locquitor claim contained in count three of the amended complaint remained the same as the allegations from the original complaint.

In construing the original complaint, we hold that the plaintiffs cause of action is that Kruger negligently performed spinal surgery on the plaintiff, resulting in the plaintiffs injuries. While count one of the original complaint does focus on improper use of the skull clamp, read as a whole it includes more general allegations that Kruger failed to properly perform the surgery. Further, looking to the original complaint as a whole, the plaintiff provided additional notice of the nature of his cause of action to the defendants through his allegations in the res ipsa locquitor count that his injuries were caused by an instrumentality solely in Krugers control when he performed the surgery on the plaintiffs spine. At the very least, this additional count put the defendants on notice that the plaintiffs claim was not limited to the skull clamp allegations. Reading the two counts together, the transaction or occurrence that formed the basis of the plaintiffs claim was that Kruger improperly used medical instruments during the plaintiffs spinal surgery, resulting in his injury. Therefore, the plaintiff adequately put the defendants on notice that his claim related to Krugers conduct during the surgery and, more specifically, his use of medical instruments during the surgery.

The plaintiffs amended complaint added new allegations that Kruger improperly used the retractor blade during surgery and removed the allegations related to the skull clamp. The retractor blade allegations do not contradict the theory that Kruger improperly used medical instruments during surgery. Instead, they constitute a change in and addition to an act of negligence, which is permitted under the relation back doctrine. Specifically, the single transaction or occurrence that constituted the cause of action was the negligent use of medical instruments during the plaintiffs spinal surgery in the operating room by Kruger, and this negligence caused the plaintiff to suffer quadriparesis.

For the foregoing reasons, we conclude that the Appellate Court properly held that the amended complaint related back to the original complaint and that the trial courts denial of the plaintiffs request to amend and its subsequent granting of the defendants motion for summary judgment should be reversed.

The judgment of the Appellate Court is affirmed.

In this opinion PALMER, EVELEIGH, McDONALD and ESPINOSA, Js., concurred.

We note that the original pleading itself must provide the opposing party with notice of a cause of action that encompasses the proposed amended allegations. Insofar as the plaintiff in the present case advocates for this court to look to the discovery history to show the existence of notice to the defendant of the retractor blade theory, we reject this approach. A plaintiff may not rely solely on disclosures made during discovery to overcome his failure to plead a cause of action prior to the expiration of the statute of limitations that he later decides is a better claim. The plaintiffs concern that a defendant could prevent a plaintiff from bringing a legitimate cause of action by delaying discovery until after the expiration of the statute of limitations is addressed by the fact that a defendants intentional concealment of his wrongful conduct tolls the statute of limitations. See General Statutes § 52-595.

While we acknowledge the defendants concern that a broad application of the relation back doctrine will encourage plaintiffs to make mere general accusations in their original complaint, such concern is already addressed in our rules of practice. Nothing in our decision today prevents a defendant from exercising his rights under Connecticut motion practice, including requests to revise and motions to strike, when a plaintiff makes mere conclusory allegations without any factual support in his complaint.

The references herein to C3, C4, C5, C6 and C7 are to the sections of vertebrae located on ones spinal cord.

We note that the defendants requested that the plaintiff revise the original complaint to include specific facts to support the allegation that Kruger failed to perform a safe and effective operation on the ground that the performance allegation was conclusory. By asking for a more detailed basis for the allegation that Kruger failed to properly perform the surgery, the defendants indicated that they were aware that in count one the plaintiff was making a broader claim than just the improper use of the skull clamp.

In reaching this conclusion, we have considered whether the new retractor blade allegations would have required different evidence or experts than the original allegations. We note that the plaintiffs expert, Macon, was disclosed as a board certified neurosurgeon with extensive experience in the kind of surgery performed on [the plaintiff] by orthopedic spine surgeon ... Kruger, and this disclosure was not limited to Macon being an expert on retractor blade usage. At the time that the plaintiff moved to amend his complaint, the defendants had not yet disclosed their experts. We are mindful that whether new allegations require new evidence or experts must always be determined on a case-by-case basis and in other circumstances may weigh heavily against a finding that a new allegation relates back to the original complaint.

ROBINSON, J., concurring.

I reluctantly agree with the majoritys decision to affirm the judgment of the Appellate Court holding that the trial court improperly denied the request of the plaintiff Donald Briere to amend his complaint to substitute a theory of medical malpractice premised on the negligent use of a retractor blade, for the originally pleaded theory of negligent use of a skull clamp during surgery. Briere v. Greater Hartford Orthopedic Group, P.C. , 158 Conn.App. 66, 75-78, 83-84, 118 A.3d 596 (2015). My reluctance is based on my concern that amendments late in the litigation process may well have the effect of unfairly changing the theory of the case to the detriment of the defendants in the present case, David Kruger, an orthopedic surgeon, and the Greater Hartford Orthopedic Group, P.C. Nevertheless, I am constrained to conclude that the majoritys reasoning is consistent with our past case law applying the relation back doctrine generally and, in particular, Dimmock v. Lawrence & Memorial Hospital, Inc. , 286 Conn. 789, 805-806, 945 A.2d 955 (2008), Alswanger v. Smego , 257 Conn. 58, 67-68, 776 A.2d 444 (2001), and Gurliacci v. Mayer , 218 Conn. 531, 547-49, 590 A.2d 914 (1991).

I write separately, however, to address the standard of review under which an appellate court evaluates a trial courts application of the relation back doctrine, particularly in light of the analytical framework articulated by the majority. The majority quotes Sherman v. Ronco , 294 Conn. 548, 554 n.10, 985 A.2d 1042 (2010), for the proposition that [t]he de novo standard of review is always the applicable standard of review for resolving whether subsequent amendments to a complaint relate back for purposes of the statute of limitations. (Emphasis in original.) This statement of the standard of review appears to resolve, in a summary manner, what had been an unsettled point of law prior to the present case, Sherman notwithstanding. See Austin-Casares v. Safeco Ins. Co. of America , 310 Conn. 640, 660 n.15, 81 A.3d 200 (2013) ; Grenier v. Commissioner of Transportation , 306 Conn. 523, 559, 51 A.3d 367 (2012). I suggest, however, that the relation back analysis articulated by the majority may require the trial court to consider factors that go beyond the face of the pleadings. This would call for the application of a more deferential standard of review than the de novo standard articulated in Sherman and adopted by the majority. Accordingly, I write separately to expand on the proper standard of appellate review.

Prior to Sherman , there had been an apparent conflict in this courts case law about whether the abuse of discretion or plenary standards of review applied to the trial courts relation back inquiry. Compare Dimmock v. Lawrence & Memorial Hospital, Inc. , supra, 286 Conn. at 799, 945 A.2d 955 (discussing conflict in detail and noting that most decisions [suggest] a de novo review because they involved comparison of pleadings and did not state specific standard of review), with Giglio v. Connecticut Light & Power Co. , 180 Conn. 230, 240, 429 A.2d 486 (1980) (suggesting that abuse of discretion standard applies to relation back inquiry). In Dimmock , we observed that [a]n abuse of discretion standard would be consistent with the general rule that [t]he trial court has wide discretion in granting or denying amendments before, during, or after trial. (Internal quotation marks omitted.) Dimmock v. Lawrence & Memorial Hospital, Inc. , supra, at 799, 945 A.2d 955. We then posited that, [o]n the other hand, a de novo standard would be more consistent with the oft stated rule that [t]he interpretation of pleadings is always a question of law for the court and that our interpretation of the pleadings therefore is plenary. (Internal quotation marks omitted.) Id., at 799-800, 945 A.2d 955. We also noted that [t]he majority of federal courts appl[y] a de novo standard to their relation back rule ... and their relation back rule is akin to our doctrine. (Citations omitted.) Id., at 800, 945 A.2d 955. Ultimately, we declined to resolve this question in Dimmock , because the appellant in that case could not prevail even under de novo review. Id.

Two years later, in Sherman , we observed that the relation back standard of review was not at issue in that case, but used dictum in a footnote to clarify that the de novo standard of review is always the applicable standard of review for resolving whether subsequent amendments to a complaint relate back for purposes of the statute of limitations. (Emphasis in original.) Sherman v. Ronco , supra, 294 Conn. at 554 n.10, 985 A.2d 1042. We cited Dimmock v. Lawrence & Memorial Hospital, Inc. , supra, 286 Conn. at 799-800, 945 A.2d 955, for the proposition that [t]he interpretation of pleadings is always a question of law for the court .... (Internal quotation marks omitted.) Sherman v. Ronco , supra, at 554 n.10, 985 A.2d 1042.

The dictum in Sherman did not settle this matter, though, as our subsequent decisions indicate, consistent with Dimmock v. Lawrence & Memorial Hospital, Inc. , supra, at 799-800, 945 A.2d 955, that the question is still open, although they declined to decide the question as not outcome determinative. See Austin-Casares v. Safeco Ins. Co. of America , supra, 310 Conn. at 660 n.15, 81 A.3d 200 ; Grenier v. Commissioner of Transportation , supra, 306 Conn. at 559, 51 A.3d 367.

I do not believe that the majoritys citation to our dictum in Sherman , without further qualification or elaboration, should be the final word on this issue. I submit that additional clarification is required given the case sensitive analysis articulated by the majority to help guide the trial courts relation back inquiries. To the extent that the majoritys analysis requires us to compare the original and proposed pleadings in order to determine whether the specific allegations underlying the new cause of action pertain to a specific transaction or occurrence between the parties that was identified in the original complaint, I agree that this interpretation of the pleadings presents a question of law over which our review is plenary.

The majoritys analysis does not, however, stop there. The majority also requires the trial court to determine whether the new allegations support and amplify the original cause of action or state a new cause of action entirely. Relevant factors for this inquiry include, but are not limited to, whether the original and the new allegations involve the same actor or actors, allege events that occurred during the same period of time, occurred at the same location, resulted in the same injury, allege substantially similar types of behavior, and require the same types of evidence and experts. I believe that these factors, which require consideration of the unique types of evidence and experts present in the case, call for a more deferential appellate review. Insofar as this portion of the majoritys approach implicates the fairness of the proposed amendment to the parties, I believe that our appellate courts should review trial court decisions applying it for the abuse of discretion. Thus, I emphasize that, beyond simply determining whether the allegations relate back as a question of interpreting the pleadings, courts should be cognizant that our liberality [in permitting amendments to the pleadings] has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. ... The motion to amend is addressed to the trial courts discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. ... Whether to allow an amendment is a matter left to the sound discretion of the trial court. (Internal quotation marks omitted.) Dow & Condon, Inc. v. Brookfield Development Corp. , 266 Conn. 572, 583, 833 A.2d 908 (2003) ; see also, e.g., Motzer v. Haberli , 300 Conn. 733, 747, 15 A.3d 1084 (2011) ; AirKaman, Inc. v. Groppo , 221 Conn. 751, 766-67, 607 A.2d 410 (1992).

These concerns of prejudice and delay are just as salient in the context of those aspects of the relation back analysis that concern the nature of the proof and fairness to the parties. Thus, I recognize that, [i]n exercising its discretion in granting or denying a request to amend a complaint during or after trial, the trial court has its unique vantage point in part because it is interpreting the plaintiffs allegations not in a vacuum, but in the context of the development of the proceedings and the parties understanding of the meaning of those allegations. Similarly, prior to trial, in light of discovery, pretrial motions or conferences, a trial court may have a different context for the allegations than what is evident to an appellate court. Dimmock v. Lawrence & Memorial Hospital, Inc. , supra, 286 Conn. at 799 n.4, 945 A.2d 955. Particularly given the holistic approach articulated by the majority, this more nuanced approach to the standard of review in relation back cases is consistent with that of the United States Court of Appeals for the Second Circuit, which, in resolving an apparent conflict in its case law on this point, elected to engage in plenary review of the district courts relation back determinations under rule 15 (c) (2) of the Federal Rules of Civil Procedure. See Slayton v. American Express Co. , 460 F.3d 215, 226-28 (2d Cir. 2006). In choosing de novo review, the Second Circuit described the relation back inquiry as a question of law involving the interpretation of the pleadings, akin to determining whether a complaint is subject to dismissal for failure to state a claim for which relief could be granted. Id., at 227. The court then contrasted the relation back determination with other amendment decisions that would remain subject to review for abuse of discretion because they involve fairness considerations, such as decisions to add a party under rule 15 (c) (3). See id. Significantly, the court emphasized that whether to allow amendment ... and whether an amended complaint relates back ... are often closely related issues. A court may deny leave to amend based wholly or partially on its belief that any amendment would not relate back. ... If the district court committed an error of law in its relation back analysis and denied leave to amend on that basis, we would reverse for abuse of discretion. ... Nevertheless, the standards of review for these types of decisions are distinct. (Citations omitted.) Id., at 226 n.11. In the present case, I do not view the defendants claims on appeal as implicating any discretionary aspects of the relation back analysis articulated by the majority. Specifically, the defendants do not argue in their brief that the timing of the proposed amendment, or the nature of the proof required to support the retractor theory, supported the trial courts exercise of its discretion to deny the amendment proposed by the plaintiff. Accordingly, I believe that the majority properly analyzes this pleadings based appeal as a pure question of law.

I, therefore, concur in the majoritys decision to affirm the judgment of the Appellate Court.

I note that Donald Brieres wife, Nancy Briere, is also a plaintiff in the present action. See footnote 2 of the majority opinion. For the sake of simplicity, however, I refer to Donald Briere as the plaintiff.

Although the parties agree that the de novo standard of review applies, the defendants alert us to the potential conflict in our case law. The defendants argue that they would prevail even if we examine the trial courts denial of the plaintiffs motion to amend de novo, rather than under the abuse of discretion standard, which is more advantageous to them.

I note that the Appellate Court has followed the plenary standard announced by the dictum in Sherman absent some further clarification from this court. DiMiceli v. Cheshire, 162 Conn.App. 216, 233-34 and n.9, 131 A.3d 771 (2016) ; see also Briere v. Greater Hartford Orthopedic Group, P.C., supra, 158 Conn.App. at 74, 118 A.3d 596.

The Second Circuit emphasized that abuse of discretion review is suitable for cases involving equitable considerations of matters specific to the conduct of the particular action because [i]n such matters, a district court has a comparative advantage over an appellate court. A district court has a familiarity with the whole case and a refined sense of the legitimate needs of the parties, and is therefore better able than an appellate tribunal to choose among multiple reasonable but incompatible results. Slayton v. American Express Co., supra, 460 F.3d at 227.