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SUSAN DIMMOCK v. LAWRENCE AND MEMORIAL HOSPITAL, INC., ET AL. (SC 18053) (SC 18054)
Rogers, C. J., and Katz, Vertefeuille, Zarella and Schaller, Js. Argued February 11--officially released May 13, 2008

Juri E. Taalman, with whom, on the brief, was David W. Bush, for the appellant (plaintiff). Thomas O. Anderson, with whom, on the brief, was Cristin E. Sheehan, for the appellees in Docket No. 18053 (defendant Frank W. Maletz et al.). Thomas W. Boyce, Jr., with whom, on the brief, was Jennifer Antognini-O'Neill, for the appellees in Docket No. 18054 (defendant Patrick F. Doherty et al.).

Opinion

KATZ, J. In this medical malpractice action, the plaintiff, Susan Dimmock, appeals from the summary judgment of the trial court rendered in favor of the defendants, Patrick F. Doherty, Frank W. Maletz, and the medical practice groups to which they respectively belong, Neurological Group, P.C., and Thames River Orthopaedic Group, LLC.1 The plaintiff contends that the trial court improperly: (1) precluded her sole expert witness on the issue of the proper standard of care from testifying on the ground that the witness' opinion did not relate to the specific negligence allegations in the operative complaint; (2) denied her request to amend her complaint to include allegations related to her expert's opinion on the ground that the statute of limitations had expired and that these new allegations did not relate back to those in the operative complaint; and (3) granted the defendants' motions for summary judgment on the ground that the plaintiff lacked an expert witness to testify regarding the standard of care relative to her negligence allegations. We affirm the judgment. The record reveals the following undisputed facts and procedural history. On or about November 9, 2000, the plaintiff had surgery at Lawrence and Memorial Hospital, Inc. (hospital), to remove a synovial cyst that had developed on her spine. Doherty performed a decompression and excision of the cyst, with Maletz assisting, and Maletz performed a bone graft that then was used to support a spinal fusion, with Doherty assisting. The plaintiff received postoperative physical therapy and was released from the hospital on November 17, 2000. On November 26, 2000, the plaintiff was readmitted to the hospital with significant drainage from the wound site. Doherty performed an incision and drainage procedure and repaired the site of a cerebral spinal fluid leak. Another physician performed an infectious disease consult, diagnosed the plaintiff with a probable infected wound site and recommended that the plaintiff start an intravenous course of antibiotic therapy. The plaintiff continued to have a persistent draining lumbar wound and thereafter was diagnosed with an antibiotic resistant bacterial infection. On December 5, 2000, Doherty performed a second incision and drainage procedure on the plaintiff. The plaintiff was prescribed a six week course of intravenous drug therapy to treat the infection. She was discharged from the hospital on December 20, 2000. The plaintiff was readmitted to the hospital on March, 4, 2001, and remained there until March 16, 2001, because of an abscess at the postoperative wound site. During that time, Doherty performed a third surgery to irrigate and drain the infected lumbar wound site. On or about March 20, 2001, the plaintiff was readmitted to the hospital for a third time, with the same symptoms

that she had experienced earlier that month--drainage from the wound site and back pain, as well as an elevated temperature. She was diagnosed with a drug resistant infection at the wound site, infection of the lumbar vertebrae and other conditions. The plaintiff remained hospitalized until March 29, 2001, and continued a course of intravenous antibiotic treatment, as well as morphine and other pain management medication, through May, 2001. On or about March 5, 2003, the plaintiff commenced this malpractice action against the defendants and the hospital.2 The majority of the plaintiff's allegations expressly related to her infection, alleging that the defendants had been negligent in failing to ensure a sterile surgical environment (surgical suite, instruments and personnel) during surgery and postoperative treatment, and in failing to diagnose and treat in a timely manner the plaintiff's infection after the November 9, 2000 surgery. The complaint also contained negligence allegations that did not refer expressly to the infection. On March 4, 2005, the defendants filed a motion to preclude the plaintiff from disclosing expert witnesses, or in the alternative, to compel disclosure, on the ground that she had failed to meet the December 31, 2004 disclosure deadline under a court scheduling order. The plaintiff filed a request to extend the disclosure date until September 15, 2005, which the court, Quinn, J., granted. On September 15, 2005, the plaintiff filed a written disclosure of six expert witnesses. Only one of those witnesses, Sanford H. Davne, a physician, was to offer an opinion on the standard of care relative to the defendants' treatment of the plaintiff; the other witnesses were to offer opinions relative to the plaintiff's postoperative condition, course of treatment and future prognosis. The disclosure stated that Davne intended to offer an opinion that the defendants had deviated from the standard of care by failing to inform the plaintiff about all of her treatment and surgical options, including ``a spinal fusion performed with instrumentation,'' and by failing ``to perform surgery with the use of instrumentation.'' ``Instrumentation'' in this case refers to the use of hardware, such as steel rods, plates and wires, to support the spinal fusion, in contrast to the bone that had been harvested from the plaintiff and used in her surgery. Thereafter, Doherty and Neurological Group, P.C., filed a motion to preclude Davne's testimony, claiming that his opinion was unrelated to the allegations in the plaintiff's complaint that the defendants had been negligent in causing, diagnosing and/or treating the plaintiff's infection. The plaintiff objected to the motion, contending that Davne's opinion elaborated on claims in the complaint and that the court should delay ruling on the motion until after the defendants had deposed Davne. The plaintiff simultaneously sought leave to

amend her complaint to incorporate Davne's opinions regarding the use of instrumentation. The defendants objected to the request to amend the complaint on the ground that such allegations would add a new claim that was barred by the statute of limitations and, alternatively, on the ground that allowing the amendment would be prejudicial to them. By agreement of the parties, the trial court, Beach, J., first ruled on the request to amend the complaint, because a ruling favorable to the plaintiff would eliminate the objection regarding Davne's testimony. The court noted that it was ``deciding the objections not on the usual criteria for deciding whether to allow amendments to complaints, however, which . . . are usually liberally applied, but rather on statute of limitations grounds.'' The court determined that it made little sense in the context of the case to overrule the defendants' objection to the amendment only to hear the parties again in the context of a summary judgment motion on the basis of the defendants' statute of limitations special defense. The court denied the plaintiff's request, concluding that the new allegations did not amplify, and therefore relate back to, those in the operative complaint. It determined that, under a fair reading of the complaint, the allegations expressly or implicitly related to the plaintiff's infection. The court concluded that the new allegations were unrelated to infection, and instead asserted a claim that the spinal fusion should have been performed with hardware or ``instrumentation.'' The court subsequently considered the motion to preclude Davne's testimony. The court examined the substance of Davne's opinion as set forth in the disclosure and determined that it revealed no opinion about the defendants' conduct relative to the plaintiff's infection, with all but one ambiguous sentence therein referring expressly to the defendants' failure to use or, discuss with the plaintiff the use of, instrumentation for the surgery. In light of that ambiguous sentence, which left open the possibility that Davne could offer an opinion relevant to the allegations in the operative complaint, and the likelihood that preclusion ``almost certainly [would] result in judgment for the defendants,'' the court declined to preclude Davne's testimony at that juncture. Instead, the court ordered the defendants to depose Davne, with costs to be borne by the plaintiff, and further held: ``If no opinion is expressed to the effect that the plaintiff's condition was not properly `monitored' and/or proper recommendations were not made, and that such deviations from a standard of care resulted in complications of infection, then the opinion will be precluded.'' After taking Davne's deposition, the defendants again filed motions to preclude his testimony for his failure to offer an opinion related to infection. The court granted those motions over the plaintiff's objection. The plaintiff then withdrew her claims against the hospital. The defen-

dants thereafter filed motions for summary judgment, which the court granted. This appeal followed.3 The plaintiff claims that the trial court improperly: denied her request to amend her complaint; precluded her expert witness on standard of care and causation; and rendered summary judgment on the ground that the plaintiff lacked an expert witness to testify regarding standard of care and causation. We address each claim in turn. I The plaintiff claims that the trial court determined that her amended complaint sought to add allegations that did not relate back to those in the operative complaint on the basis of an unduly restrictive view of the pleadings generally and a misconception that her negligence allegations were limited to the cause and effect of the infection. The plaintiff contends a broader view of the allegations is supported by the fact that the operative complaint is an ``amalgamation'' of two earlier complaints from cases alleging negligence on the basis of two different theories--one relating to the infection, and the other relating to her back injury. See footnote 2 of this opinion. We conclude that, although the trial court improperly determined that the operative complaint was limited to claims relating to the plaintiff's infection, the new allegations nonetheless did not relate back to those in the operative complaint and hence were time barred. Under our case law, it is well settled 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 whe[n] an entirely new and different factual situation is presented, a new and different cause of action is stated.'' (Citations omitted; internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 129

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