******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
DONALD BRIERE ET AL. v. GREATER HARTFORD
ORTHOPEDIC GROUP, P.C., ET AL.
(AC 36075)
Lavine, Prescott and Schaller, Js.
Argued February 3—officially released June 23, 2015
(Appeal from Superior Court, judicial district of
Middlesex, Aurigemma, J. [request for leave to amend;
summary judgment].)
Ron Murphy, for the appellants (plaintiffs).
Lorinda S. Coon, with whom, on the brief, was John
W. Sitarz, for the appellees (defendants).
Opinion
LAVINE, J. The principal issue in this medical mal-
practice appeal is whether allegations stated in an
amended complaint related back to the original com-
plaint and, therefore, were timely under General Stat-
utes § 52-584. The plaintiff Donald Briere1 appeals from
the judgment of the trial court granting summary judg-
ment in favor of the defendants, David Kruger, an ortho-
pedic surgeon, and Greater Hartford Orthopedic
Group, P.C.
On appeal, the plaintiff claims that the trial court
improperly concluded that the plaintiff’s proposed
amended complaint did not relate back to the original
complaint and was time barred.2 In light of the manner
in which discovery in this case unfolded, and reading
the original complaint broadly but reasonably, we con-
clude that the amended allegations of negligence as to
the way in which the spinal surgery was performed on
the plaintiff relate back to the allegations pleaded in
the original complaint. The cause of action is, therefore,
not barred by the statute of limitations. Accordingly,
we reverse the judgment of the trial court.
The following procedural history and undisputed
facts, as alleged in the pleadings, are relevant to the
disposition of the plaintiff’s appeal. On May 21, 2008,
Kruger, an employee of Greater Hartford Orthopedic
Group, P.C., performed a cervical laminectomy on the
plaintiff to remove bone at the C7 level of his spine.3
During the surgery, an electrophysiologic monitor indi-
cated an abnormal signal in the plaintiff’s nerve function
and Kruger aborted the surgery. The plaintiff sustained
a spinal cord contusion, leaving him quadriparetic4 and
with sensory loss. The plaintiff initiated this action and
filed a complaint dated October 23, 2009. In counts
one and two of the complaint, the plaintiff alleged that
Kruger performed the surgery in a negligent manner.5
In count three, the plaintiff pleaded the doctrine of res
ipsa loquitur. In counts four and five, the plaintiff
alleged loss of consortium.
The plaintiff alleged his general negligence theory in
counts one and two, asserting that Kruger’s negligent
care of the plaintiff during surgery fell below the accept-
able standard of care when ‘‘Dr. Kruger failed to per-
form a safe and effective operation.’’ In count three,
the plaintiff further alleged that ‘‘[t]he damage to [the
plaintiff’s] spinal cord at C3-4-5 is ordinarily not seen
in the course of surgery at C6-7 in the absence of some-
one’s negligence’’ and ‘‘[t]he injuries were caused by an
instrumentality solely within the defendants’ control.’’
On January 12, 2010, the defendants filed a request
to revise the plaintiff’s complaint. In the request to
revise, the defendants sought a more complete or partic-
ular statement for the following allegations: in counts
one and two, ‘‘Dr. Kruger failed to perform a safe and
effective operation’’; in count three, ‘‘[t]he damage to
[the plaintiff’s] spinal cord at C-3-4-5 is ordinarily not
seen in the course of surgery at C6-7 in the absence of
someone’s negligence.’’ The trial court, Holzberg, J.,
sustained the plaintiff’s objection to the defendants’
request to revise.
On October 24, 2011, the plaintiff disclosed James
Macon, a neurosurgeon, as one of his expert witnesses.
According to the disclosure, Macon was to testify that
the plaintiff’s injury was not the result of the positioning
of his head and neck but instead was proximately
caused by a negligently placed retractor blade used
during the surgery (retractor theory). Specifically, his
disclosed opinion was ‘‘it is more likely than not that
there is a retractor blade pressing on the spinal cord
at the level of the contusion . . . that the loss of signal
occurred within minutes of Kruger’s moving the retrac-
tors to C3-4, and that the damage to [the plaintiff’s]
spinal cord was more likely than not caused by the
negligently placed medial retractor blade.’’ The defen-
dants deposed Macon on March 28, 2012.
On April 27, 2012, the plaintiff sought leave to amend
the complaint to allege, inter alia, that after making an
incision, Kruger negligently placed a retractor at C3-4
and the plaintiff suffered a spinal cord contusion due
to the retractor’s pressing on the spinal cord. The defen-
dants objected on the ground that such allegations
would add a new negligence claim that was barred by
the statute of limitations under § 52-584.6 On July 9,
2012, the court, Aurigemma, J., sustained the defen-
dants’ objection without opinion. The plaintiff moved
for an articulation and for reargument on the ground
that he had not been permitted to argue against the
defendants’ objection. Judge Aurigemma granted the
motions and on August 6, 2012, heard argument on
the request for leave to amend the complaint and the
defendants’ objection. After hearing from both parties,
Judge Aurigemma denied the plaintiff’s request to
amend concluding that ‘‘the proposed amended com-
plaint relates to a completely different type of negli-
gence with different underlying facts than the
negligence referred to in the original complaint.’’
On August 17, 2012, the defendants filed a motion
for summary judgment, asserting that the plaintiff could
not produce expert testimony necessary to support his
claim of negligence alleged in the original complaint.
The court, Domnarski, J., denied the defendants’
motion for summary judgment as to the medical negli-
gence and loss of consortium counts but granted the
motion as to the count alleging res ipsa loquitur. On
December 18, 2012, the plaintiff filed a second request
for leave to file an amended complaint. On December
31, 2012, the defendants objected to the plaintiff’s
request for leave, filed a motion for further articulation
directed to Judge Aurigemma’s August 6, 2012 ruling
on the plaintiff’s proposed amendment, and filed a
motion to reargue, reconsider, and vacate Judge Domn-
arski’s ruling on their motion for summary judgment.
On May 31, 2013, at Judge Aurigemma’s urging,7 the
parties entered into a stipulation in which ‘‘the plaintiffs
reluctantly and under protest stipulate that the Defen-
dants’ Motion to Reargue, Reconsider, and Vacate Rul-
ing on Motion for Summary Judgment may be granted
by Judge Domnarski’’ and referred the motion for sum-
mary judgment to Judge Aurigemma for decision. Pur-
suant to the stipulation, Judge Domnarski vacated his
ruling on the motion for summary judgment. On August
15, 2013, Judge Aurigemma sustained the defendants’
objection to the second proposed amended complaint
and, on August 21, 2015, granted summary judgment
on all counts of the original complaint. This appeal
followed. Additional facts will be set forth as necessary.
The plaintiff claims that the court improperly failed
to take his proposed amended complaint into account
when it ruled on the defendants’ motion for summary
judgment.8 The plaintiff argues that the trial court
improperly determined that his amended complaint
sought to add allegations that did not relate back to
those in the original complaint and, therefore, were
time barred by the two year statute of limitations set
forth in § 52-584. Specifically, the plaintiff argues that
the court’s construction of his original complaint is
unduly restrictive. Under the facts and circumstances
of this case, we agree with the plaintiff that the court
took too narrow a view of the allegations contained in
the original complaint, namely, that ‘‘Dr. Kruger failed
to perform a safe and effective operation.’’
We begin by setting forth our standard of review. Our
Supreme Court has previously stated that ‘‘the de novo
standard of review is always the applicable standard
of review for resolving whether subsequent amend-
ments to a complaint relate back for purposes of the
statute of limitations.’’ (Emphasis in original.) Sherman
v. Ronco, 294 Conn. 548, 554 n.10, 985 A.2d 1042 (2010);
but see Austin-Casares v. Safeco Ins. Co. of America,
310 Conn. 640, 660 n.15, 81 A.3d 200 (2013) (‘‘[t]his court
previously has not determined whether, on appeal, the
trial court’s application of the relation back doctrine is
subject to an abuse of discretion standard or a de novo
review’’). Our review of the plaintiff’s claims, therefore,
will be de novo pending any further clarification from
our Supreme Court.
‘‘Our relation back doctrine provides that an amend-
ment relates back when the original complaint has given
the party fair notice that a claim is being asserted stem-
ming from a particular transaction or occurrence,
thereby serving the objectives of our statute of limita-
tions, namely, to protect parties from having to defend
against stale claims. . . . To relate back to an earlier
complaint, the amendment must arise from a single
group of facts. . . . In determining whether an amend-
ment relates back to an earlier pleading, we 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 pro-
ceeded, 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. . . . Finally, in
the cases in which we have determined that an amend-
ment 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.’’
(Citations omitted; internal quotation marks omitted.)
Grenier v. Commissioner of Transportation, 306 Conn.
523, 559–60, 51 A.3d 367 (2012).
‘‘With reference to the original complaint, our inquiry
as to whether the plaintiffs’ proposed amendment
related back centers on whether the proposed amend-
ment set forth new causes of action. . . . 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 a 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 where an
entirely new and different factual situation is pre-
sented, a new and different cause of action is stated.’’
(Emphasis added; internal quotation marks omitted.)
Miller v. Fishman, 102 Conn. App. 286, 299, 925 A.2d 441
(2007), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008).
With these legal principles in mind, we first examine
the allegations in the original complaint. The plaintiff’s
theory that Kruger was negligent in the manner in which
he performed the surgery is alleged in counts one and
two. Paragraph 36 (A) through (G) set forth the follow-
ing allegations of negligence:
‘‘(A) Dr. Kruger failed to plan a safe and effective
operation.
‘‘(B) Dr. Kruger failed to perform a safe and effec-
tive operation.
’’(C) Dr. Kruger failed to position [the plaintiff] safely
and securely on the operating table; and/or
‘‘(D) Dr. Kruger failed to make sure the skull clamp
was safely and securely applied to [the plaintiff’s] skull;
and/or
‘‘(E) Dr. Kruger failed to make sure the locking device
connecting the skull clamp to the [operating room] table
was safe and securely applied; and/or
‘‘(F) Dr. Kruger failed to make sure that [the plain-
tiff’s] positioning in the Wilson frame was safe and
secure; and/or
‘‘(G) Dr. Kruger failed to make sure that [the plaintiff]
would not move during the surgery.’’ (Emphasis added.)
Count three, paragraph 36 (A) and (B) set forth the
following allegations of res ipsa loquitur:
‘‘(A) The damage to [the plaintiff’s] spinal cord at
C3-4-5 is ordinarily not seen in the course of surgery
at C6-7 in the absence of someone’s negligence.
‘‘(B) The injuries were caused by an instrumentality
solely within the defendants’ control.’’ (Emphasis
added.)
Paragraph 45 of the plaintiff’s proposed amended
complaint deleted five of the aforementioned allega-
tions in count one and, instead, pleaded the follow-
ing allegations:
‘‘(A) Dr. Kruger failed to plan a safe and effective
operation, and/or
‘‘(B) Dr. Kruger failed to perform a safe and effective
operation, and/or
‘‘(C) Dr. Kruger failed to apply the retractor at C3-4
properly, and/or
‘‘(D) Dr. Kruger failed to apply the retractor at C3-4
properly so that the blades would not shift when the
retractor was opened.’’
In comparing the original complaint with the pro-
posed amended complaint, we conclude that the pro-
posed amendments relate back. We are mindful that
‘‘we long have 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.’’ (Internal quotation
marks omitted.) Grenier v. Commissioner of Transpor-
tation, supra, 306 Conn. 536. Reading the original com-
plaint broadly and realistically, the proposed
amendments did not change the nature of the plaintiff’s
theory of the case that Kruger performed the spinal
surgery negligently. The amendments alleging that the
defendants were negligent in placing a retractor at C3-
4 related back to the general allegations in the original
complaint that:
‘‘[Count One] 36. (B) Dr. Kruger failed to perform a
safe and effective operation.
‘‘[Count Three] 36. (A) The damage to [the plaintiff’s]
spinal cord at C3-4-5 is ordinarily not seen in the course
of surgery at C6-7 in the absence of someone’s neg-
ligence.
‘‘(B) The injuries were caused by an instrumentality
solely within the defendants’ control.’’
The cause of action, as generally alleged in the origi-
nal complaint, arose from the defendants’ alleged negli-
gent care of the plaintiff during surgery, which caused
injury to his spinal cord at C3-4 leading to quadriparesis.
The allegations found in proposed paragraphs 45 (A)
through (D), which pertain to the retractor theory, arise
out of the same set of facts set forth in the original
complaint, that is, the defendants’ failure to perform a
safe and effective operation, which caused the plain-
tiff’s injury. The original complaint specified a general
allegation of negligence during surgery with specific
allegations delineating the exact location and type of
the injury suffered. The amendments did not allege a
new theory of negligence but merely specified the pre-
cise way in which the defendants were alleged to have
been negligent during surgery. The amended complaint
therefore, ‘‘did not inject two different sets of circum-
stances and depend on different facts . . . which
would preclude the . . . amended complaint from
relating back to the original . . . complaint.’’ (Citation
omitted; internal quotation marks omitted.) Grenier v.
Commissioner of Transportation, supra, 306 Conn.
562.
‘‘Fair notice of the [plaintiffs’] claim is all that is
required to satisfy the objectives of the statute of limita-
tions.’’ Id., 563. ‘‘This particular focus is guided by the
policy reasons underlying the relation back doctrine—
namely, ensuring that 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,
supra, 294 Conn. 556–57. The plaintiff argues that the
general allegations put the defendants on notice of the
plaintiff’s theory of his case, that Kruger performed
the surgery in a negligent manner. The defendants had
adequate notice, within the statute of limitations, that
a claim was being asserted against them arising out of
the negligent performance of the plaintiff’s surgery. The
structure of the original complaint illustrates that the
allegations in paragraphs 36 (D) through (G), pertaining
to the positioning of the plaintiff’s head and neck, were
not meant to supersede the overarching negligence alle-
gation that Kruger performed the surgery in a negligent
manner. The fact that the plaintiff pleaded res ipsa
loquitur indicates some lack of certitude as to the pre-
cise mechanism that led to the plaintiff’s injury. Not-
withstanding this, the defendants were put on notice
of the underlying fact that, during the surgery, Kruger
had sole control over the plaintiff’s body and that as a
consequence of his negligent conduct the plaintiff was
left quadriparetic.
The plaintiff also contends that Judge Holzberg’s
denial of the defendants’ request to revise gave the
plaintiff time to specify the details of his theory of
negligence during discovery. In the request to revise,
the defendants sought ‘‘a more complete or particular
statement’’ of how Kruger failed to perform a safe opera-
tion and how the plaintiff’s type of spinal injury is not
seen in the absence of negligence. The plaintiff objected
by stating: ‘‘While the defendants are entitled to further
detail, the complaint is not the place for an exposition
of the details of the plaintiff’s view of [his] case or the
opinions of [his] experts. They will have to wait for
expert disclosure and deposition.’’ Judge Holzberg sus-
tained the plaintiff’s objection to the defendants’
request to revise, which in effect left the issue open for
further development and affirmed that the plaintiff was
not required to plead subordinate facts with absolute
precision at that point in the procedural history. We
note that the defendants initially sought a more com-
plete statement with regard to the general allegations
and then opposed the plaintiff’s subsequent amend-
ments that expounded upon such allegations.9
Furthermore, the plaintiff timely disclosed Macon
and his opinion regarding the retractor theory on Octo-
ber 24, 2011. The defendants were further put on notice
of the retractor theory when they deposed Macon on
March 28, 2012. The plaintiff’s request to amend was
filed approximately ten months prior to the jury selec-
tion date. Under the factual circumstances of this case
and its procedural history, the defendants were given
more than fair notice of the plaintiff’s claims regarding
the retractor theory. The proposed amendments merely
elaborated on the specific facts supporting the plain-
tiff’s negligence claims that were progressively revealed
through the ongoing process of discovery. See Miller
v. Fishman, supra, 102 Conn. App. 296–97.
The defendants’ argument centers on the claim that
the plaintiff’s retractor theory ‘‘is an entirely different
‘wrongful act or omission,’. . . [i]t is a different delict
and therefore a different cause of action.’’ The defen-
dants argue that the general theory alleged in the origi-
nal complaint was limited to a claim of negligence
related to the improper positioning of the plaintiff’s
head during surgery. Accordingly, they argue that the
plaintiff’s reliance on the general allegation that ‘‘Dr.
Kruger failed to perform a safe and effective operation’’
is improper because the overbroad allegation should
not be used to ‘‘claim anything having to do with the
surgery.’’ We disagree.
The defendants’ reliance on Dimmock v. Lawrence &
Memorial Hospital, Inc., 286 Conn. 789, 945 A.2d 955
(2008), is misplaced. In Dimmock, our Supreme Court
held that the proposed amended complaint of the plain-
tiff, Susan Dimmock, did not relate back to the operative
complaint. Id., 798. The operative complaint in Dim-
mock presented a unique procedural history on which
the court heavily relied. Id., 803. The operative com-
plaint resulted from the merging of Dimmock’s two
prior causes of action, each of which raised distinct
claims of negligence related to the cause and treatment
of her postsurgical infection and the diagnosis and treat-
ment of her back condition, respectively. Id. Although
‘‘the overwhelming thrust of the operative complaint
related to [Dimmock’s] infection,’’ the pleadings also set
out several general negligence allegations. Id., 802–803.
The court held that ‘‘the trial court improperly deter-
mined that the operative complaint was limited to
claims relating to the plaintiff’s infection’’ and therefore
the trial court should have interpreted the pleadings
broadly in relation to the general negligence allegations.
Id., 797–98. The court held, however, that even though
the trial court unduly narrowed its interpretation of the
operative complaint, the new allegations did not relate
back to it. Id., 798.
Dimmock is distinguishable because Dimmock’s pro-
posed amended complaint directly contradicted allega-
tions in the operative complaint. Id., 806. Dimmock’s
operative complaint alleged that the defendant should
not have performed a spinal fusion, while the proposed
amended complaint alleged that the defendant should
have performed the spinal fusion, but with different
fusion material. Id., 805. The court noted, ‘‘we are
unaware of any case in which this court has held that
new allegations that replace and directly contradict
those in the operative complaint have been deemed to
amplify, and hence relate back, to those in the operative
complaint.’’ (Emphasis in original.) Id., 806.
Additionally, our Supreme Court rejected Dimmock’s
reliance on a general negligence allegation in the opera-
tive complaint to support the relation back doctrine.
Id., 808–809. The court was able to identify which allega-
tions came from which of the two prior complaints
and which distinct theory of negligence each complaint
supported. Id., 804. The general allegation stated that
the defendants ‘‘failed to establish a proper patient care
plan for [Dimmock]. . . .’’ (Internal quotation marks
omitted.) Id., 808. This general negligence allegation
arose from the prior cause of action related to Dim-
mock’s postsurgical infection. Id., 809. The court identi-
fied the origins of the general allegation and, thus, held
that the ‘‘new allegations of negligence relating to the
use of instrumentation had no relationship to the cause
or effect of [Dimmock’s] infection’’ and, therefore, they
did not relate back. Id.
The defendants cite to Sherman v. Ronco, supra, 294
Conn. 548, in which our Supreme Court noted that the
contrast between prior cases before the court ‘‘provides
useful guidance as to when an amendment that adds
an alternate theory of liability may relate back to an
earlier, timely complaint.’’ Id., 563. The court stated that
‘‘[i]f the alternate theory of liability may be supported
by the original factual allegations, then the mere fact
that the amendment adds a new theory of liability is
not a bar to the application of the relation back doctrine.
. . . If, however, the new theory of liability is not sup-
ported by the original factual allegations of the earlier,
timely complaint, and would require the presentation
of new and different evidence, the amendment does
not relate back.’’10 (Citation omitted.) Id.
The present case is distinguishable from both Dim-
mock and Sherman. Unlike in Dimmock, the allegations
in the proposed amended complaint do not contradict
the allegations in the original complaint. The original
complaint in the present case alleged that Kruger per-
formed the plaintiff’s surgery in a negligent manner.
The amended complaint merely specifies the manner in
which Kruger was allegedly negligent. Unlike Sherman,
the evidence necessary to support and defend the plain-
tiff’s claim would remain the same: how the defendants
performed the plaintiff’s surgery. See footnote 10 of
this opinion.
Cases analyzing the relation back doctrine are predi-
cated on the specific facts in issue. We acknowledge
that if this court were to take a narrow, hypertechnical
reading of the pleadings before us, we could come to
a different conclusion. Medical malpractice actions pre-
sent a conundrum in that there is typically unequal
access to the underlying facts and conditions of the
claim at the time a complaint is served. The reality in
medical malpractice cases is that plaintiffs must heavily
rely on the discovery process as it unfolds to flesh out
their claims, and the locating of expert witnesses to
explain, analyze, and testify about complex scenarios.
In fact, our rules of practice allow parties to submit a
proposed schedule for expert discovery within 120 days
after the return date. See Practice Book § 13-4 (g) (1)
(‘‘[t]he deadlines proposed by the parties shall be realis-
tic and reasonable, taking into account the nature and
relative complexity of the case’’). In consideration of
the facts of this case, we conclude that a better reading
of the pleadings is a broad but pragmatic one that pro-
motes substantial justice in this case.
Under the specific facts of this case, in particular the
way in which discovery unfolded, we conclude that the
allegations in the proposed amended complaint related
back and therefore were not barred by the statute of
limitations. Because we conclude that the court should
have allowed the plaintiff to amend his complaint, it
follows that the summary judgment rendered on the
ground that the plaintiff could not support the allega-
tions set forth in his original complaint must be
reversed.
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
Nancy Briere is also a plaintiff in this action. Her loss of consortium
claims are derivative of her husband’s negligence claims. For convenience,
all references to the plaintiff in this opinion are to Donald Briere.
2
The plaintiff also claims that the court abused its discretion in reassigning
the case for trial. Because we reverse the judgment on the basis of the
plaintiff’s first claim, we need not reach his second claim and provide a
discussion of the procedural history only insofar as it relates to the first
claim.
3
Lamina is the bony arch of one or more vertebrae. See Stedman’s Medical
Dictionary (28th Ed. 2006) p. 1046.
4
Quadriparesis is a partial or incomplete paralysis marked by weakness
in all four extremities. See Stedman’s Medical Dictionary (28th Ed. 2006)
pp. 1425, 1616, and 1968.
5
Specifically, the plaintiff alleged that: ‘‘36. It is more likely than not
that Dr. David Kruger was negligent or careless in one or more of the
following ways:
‘‘(A) Dr. Kruger failed to plan a safe and effective operation.
‘‘(B) Dr. Kruger failed to perform a safe and effective operation.
‘‘(C) Dr. Kruger failed to position [the plaintiff] safely and securely on
the operating table; and or
‘‘(D) Dr. Kruger failed to make sure the skull clamp was safely and securely
applied to [the plaintiff’s] skull; and/or
‘‘(E) Dr. Kruger failed to make sure the locking device connecting the
skull clamp to the [operating room] table was safely and securely applied;
and/or
‘‘(F) Dr. Kruger failed to make sure that [the plaintiff’s] positioning in the
Wilson frame was safe and secure; and/or
‘‘(G) Dr. Kruger failed to make sure that [the plaintiff] would not move
during the surgery.’’
6
General Statutes § 52-584 provides in relevant part: ‘‘No action to recover
damages for injury to the person . . . caused by negligence, or by reckless
or wanton misconduct, or by malpractice of a . . . surgeon . . . shall be
brought but within two years from the date when the injury is first sustained
or discovered or in the exercise of reasonable care should have been discov-
ered, and except that no such action may be brought more than three
years from the date of the act or omission complained of, except that a
counterclaim may be interposed in any such action any time before the
pleadings in such action are finally closed.’’
7
Specifically, Judge Aurigemma stated in relevant part:
‘‘The Court: All right before we go forward I just want to briefly review
the history of this case. It was filed in [2009]. In [2012], I think, the plaintiff
moved to amend.
‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.
‘‘The Court: And I don’t know what happened in the intervening time, but
I’m sure if we went back and looked at all the docket sheets, we’d find out.
There were, probably, many extensions of time to disclose experts, but, be
that as it may, the motion to amend, in my view, sought to completely
change the cause of action from one which alleged negligence in the way
that the head and neck were positioned and the use of a Mayfield Skull
Clamp, et cetera.
‘‘And the new proposed complaint was talking about negligence with
respect to a retractor. I did not allow that, and I held it did not relate
back. The plaintiff argued that there was language in the complaint that the
defendant, otherwise, failed to perform a safe operation, words to that effect.
And that, in the plaintiff’s view, would permit this new course of action.
‘‘I disagree, obviously. I felt that then the defendant would move for
summary judgment, which it did, and it would be granted because the
plaintiff had no expert for the original cause of action. Unfortunately,
because we have different judges it was not. It was denied.
‘‘Judge Domnarski’s view of those words, ‘and was otherwise unsafe’, and
my view are different. And thereafter, I had—my view, generally, is that the
judge who denies summary judgment should be granted should get the trial.
And that’s still my view, but as I thought about this case, which is unlike
many cases, is going to be fairly expensive to put on with all the expert
fees involved that, in my view, I thought would not prevail in this case.
‘‘So I know Judge Domnarski told you that he would have the case—and
it’s not his fault—it’s my fault—I rethought about this. I’m the presiding
judge. I didn’t think it was fair to either party to have to go all the way
through with trial, with the case, which I thought was going to be reversed
on appeal. So I’m going to have the trial. My ruling still stands.
‘‘I know Judge Domnarski said he’d consider the amendment, and so,
therefore, you had to do it again. I’m sorry. You have filed to amend again,
I assume, pretty much, the same amendment. Right?
‘‘[The Plaintiff’s Counsel]: Pretty much.
‘‘The Court: If it is the same amendment I’m not going to allow it for the
same reasons in my August 6, 2012 decision. I don’t know how you want
to proceed. The summary judgment has been denied, and I, certainly, can’t
change the ruling of a fellow judge. So I don’t know what you want. I mean,
you can either—I don’t know what you want to do. I suppose, you could
agree, to get to the Appellate Court the fastest way would be to ask Judge
Domnarski to vacate.’’
8
We note that this appeal is taken from Judge Aurigemma’s order granting
the defendants’ motion for summary judgment. The court acknowledged,
however, in its memorandum of decision that ‘‘[t]he plaintiffs’ Objection to
the Motion for Summary Judgment is, essentially, an attempt to reargue the
Objection to the Request to Amend the complaint [and] . . . the court will
address the plaintiffs’ arguments in opposition to summary judgment, which
were really arguments that they had been unfairly denied the right to amend
their complaint.’’ This decision, therefore, focuses on the real issue in dis-
pute, that is, whether the plaintiff should have been permitted to amend
his complaint to allege that the injury was caused by a negligently placed
retractor blade.
9
It would seem that the defendants got precisely what they asked for in
their request to revise.
10
As in all relation back cases, the court must focus on the factual predicate
underlying both the original complaint and the proposed amendment. In
Sherman, our Supreme Court found that the plaintiff’s amendment would
require new evidence and thus did not relate back to the original complaint.
Sherman v. Ronco, supra, 294 Conn. 563. It is important to note that the
plaintiff’s proposed amendment shifted the theory of liability from a failure
to act, i.e., negligent supervision, to intentional and malicious acts that
expanded the time line of alleged improper conduct. Id., 559 (‘‘[i]n the new
scenario, [the school principal] is depicted not merely as a principal who
negligently failed to recognize and take action against a teacher who was
sexually abusing the plaintiff, but as a cohort who actively and knowingly
sought out the plaintiff because he was vulnerable, lured him to school . . .
and wilfully and maliciously placed him in the dangerous position of being
in unsupervised and frequent contact with a sexual predator’’).