Briere v. Greater Hartford Orthopedic Group, P.C.

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DONALD BRIERE ET AL. v. GREATER HARTFORD
ORTHOPEDIC GROUP, P.C., ET AL.
(SC 19576)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.
Argued December 15, 2016—officially released April 11, 2017
Lorinda S. Coon, with whom was John W. Sitarz,
for the appellants (defendants).
Ron Murphy, with whom was Roger Kaye, for the
appellees (plaintiffs).
Roy W. Breitenbach and Michael J. Keane, Jr., filed
a brief for the Connecticut Orthopaedic Society as ami-
cus curiae.
Claire V. Jackson and Michael G. Rigg filed a brief
for the Connecticut Defense Lawyers Association as
amicus curiae.
James J. Healy and Cynthia C. Bott filed a brief for
the Connecticut Trial Lawyers Association as amicus
curiae.
Opinion
ROGERS, C. J. In this certified appeal, we are tasked
with clarifying the contours of the relation back doc-
trine, specifically as applied to medical malpractice
claims.1 The plaintiff, Donald Briere,2 brought a cause
of action against the defendants, Greater Hartford
Orthopedic Group, P.C. (practice group), and David
Kruger, an orthopedic surgeon, alleging medical mal-
practice during a spinal surgery resulting in the plaintiff
suffering quadriparesis. After the expiration of the rele-
vant statute of limitations, General Statutes § 52-584,3
the plaintiff sought to amend his complaint. Both the
original and amended complaints included claims that
Kruger failed to properly plan and to perform the sur-
gery through the use of an instrumentality in his control.
The plaintiff’s original complaint, however, included
detailed allegations of the improper usage of a skull
clamp. In his proposed amended complaint, however,
the plaintiff replaced those detailed allegations with
allegations of the improper use of a retractor blade.
The trial court denied the request to amend, narrowly
construing the original complaint as limited to a claim of
the negligent usage of the skull clamp and subsequently
granted the defendants’ motion for summary judgment
because the plaintiff had abandoned the theory that
negligent use of the skull clamp had caused his injury.
The Appellate Court reversed the trial court’s denial of
the plaintiff’s request to amend, broadly construing the
original complaint as a claim of negligence in per-
forming the surgery, which could be supported by either
set of factual allegations. Briere v. Greater Hartford
Orthopedic Group, P.C., 158 Conn. App. 66, 118 A.3d
596 (2015). The defendants advocate for this court to
adopt the narrower approach used by the trial court
and to reverse the judgment of the Appellate Court.
We decline to do so and affirm the judgment of the
Appellate Court.
The following facts and procedural history are rele-
vant to this appeal. In November, 2009, the plaintiff
initiated a cause of action against the defendants for
injuries he suffered during a spinal surgery performed
on May 21, 2008.4 In count one of the complaint, the
plaintiff alleged that Kruger had failed to plan or to
perform a safe and effective operation. The plaintiff
made additional allegations in count one that Kruger
was negligent in his use of a skull clamp to secure the
plaintiff during the surgery.5 At the time that he filed
his complaint, the plaintiff also filed a petition for an
automatic extension of the statute of limitations. The
trial court granted the petition, extending the expiration
of the statute of limitations from May 21, 2010 to August
19, 2010.
Six months before the expiration of the statute of
limitations, the defendants filed a request to revise,
in which they sought a more complete or particular
statement of how Kruger had failed to plan or to perform
a safe and effective surgery. The plaintiff objected to
the request to revise, asserting that the allegations were
not conclusory and that the proper mechanism to pro-
cure a more specific statement was through discovery.
Prior to the expiration of the statute of limitations, the
trial court, Holzberg, J., sustained the plaintiff’s
objection.
Subsequently, the plaintiff disclosed James Macon, a
neurosurgeon, as an expert witness and indicated that
Macon would testify that Kruger had been negligent
when he improperly placed a retractor blade during
surgery. The defendants deposed Macon five months
after he was disclosed as an expert.
The plaintiff then filed a request for leave to file an
amended complaint. In the proposed amended com-
plaint, the plaintiff removed the allegations related to
the skull clamp and added allegations that Kruger had
failed to properly apply a retractor blade during surgery.
The defendants objected to the request on the ground
that the allegations concerning the retractor blade were
new allegations and did not relate back to the original
pleading, and therefore were barred by the statute of
limitations. In a written memorandum of decision, the
trial court, Aurigemma, J., sustained the defendants’
objection.
Subsequently, the defendants moved for summary
judgment on the ground that the plaintiff could not
prove medical negligence under the original complaint
because he had not disclosed an expert who could
testify concerning the skull clamp. Prior to responding
to the defendants’ motion for summary judgment, the
plaintiff filed a motion in limine asking the trial court
to rule on whether it would admit Macon’s expert testi-
mony on the retractor blade theory at trial in light of
the court’s denial of the plaintiff’s request to amend the
complaint to include the retractor blade allegations.
In response to the motion in limine, the trial court,
Aurigemma, J., ruled that it would not admit Macon’s
testimony at trial. The plaintiff then filed a memoran-
dum in opposition to the motion for summary judgment
in which he argued that the trial court’s denial of his
request to amend and its ruling on the motion in limine
were inconsistent with the trial court’s previous ruling
sustaining the plaintiff’s objection to the defendants’
request to revise, and that the rulings were fundamen-
tally unfair. The plaintiff did not submit affidavits or
other evidence that created a genuine issue of material
fact concerning the negligent usage of the skull clamp.
Judge Aurigemma rendered summary judgment in favor
of the defendants on all counts on the ground that the
plaintiff did not have an expert who could testify that
improper skull clamp usage caused his injuries, which
were the specific allegations in the complaint.6 Judge
Aurigemma noted that her decision was dependent
upon her previous denial of the plaintiff’s request to
amend the complaint.
The plaintiff appealed to the Appellate Court. See id.The Appellate Court reversed the trial court’s denial
of the plaintiff’s request to amend and its subsequent
summary judgment rendered in favor of the defendants
on the ground that the trial court improperly applied
the relation back doctrine. Id., 68. Specifically, the
Appellate Court held that the retractor blade allegations
related back to the original theory that Kruger was
negligent during the surgery, as found in the allegations
that Kruger had failed to plan or to perform a safe and
effective surgery. Id., 78. This appeal followed.
The defendants claim that the Appellate Court
improperly interpreted the allegations in the original
complaint that Kruger failed to properly plan or to per-
form the surgery as independent from the allegations
that he failed to properly use the skull clamp. Under this
state’s fact based pleading requirements, the defendants
assert, the planning and performance allegations cannot
stand alone because they are conclusory in nature and
merely introduce the skull clamp allegations that form
the factual basis for the plaintiff’s claim. They further
assert that the Appellate Court improperly interpreted
the res ipsa locquitor allegations; see footnote 4 of this
opinion; as support for a theory of negligence beyond
improper skull clamp placement in the original com-
plaint. The defendants claim that when the original com-
plaint is properly read as a claim that Kruger improperly
used the skull clamp during surgery, then the proposed
amended allegations regarding the retractor blade do
not relate back because they are an entirely different
theory of negligence.7
The plaintiff asserts that the Appellate Court properly
interpreted the original complaint as a theory that Kru-
ger negligently planned and performed the surgery in
one or more ways. He claims that the original allega-
tions provided fair notice to the defendants that his
theory of negligence related to Kruger’s conduct during
the surgery. The plaintiff further asserts that within
the context of a medical malpractice case, where the
plaintiff may not be able to discover the precise manner
in which the defendant was negligent until after the
parties engage in discovery, it would be unjust to hold
a plaintiff to as narrow a pleading standard as the defen-
dants advocate.
We begin by setting forth the proper standard of
review and applicable legal principles. ‘‘[T]he 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.’’8 (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 negli-
gence 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 & Gynecol-
ogy Group, P.C., 297 Conn. 105, 140, 998 A.2d 730(2010).’’ (Emphasis in original; footnote omitted.) Fin-
kle v. Carroll, 315 Conn. 821, 837–38, 110 A.3d 387(2015).
‘‘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 . . . . Barrett v. Danbury Hospi-
tal, 232 Conn. 242, 263–64, 654 A.2d 748 (1995).’’ (Inter-
nal quotation marks omitted.) Alswanger v. Smego,
supra, 257 Conn. 65. ‘‘[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 previ-
ous allegations.’’ Grenier v. Commissioner of Trans-
portation, 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 circum-
stances 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. 139–43 (allegation that defendant
physician failed to ensure that specific surgeon partici-
pated in surgery related back to allegation that defen-
dant 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); Bar-
nicoat 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 deliv-
ery of minor plaintiff), cert. denied, 285 Conn. 905, 942
A.2d 414 (2008). On the other hand, where new allega-
tions directly contradict those in the operative com-
plaint 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, alle-
gation that surgeons should not have performed surgery
at all on plaintiff); see also Alswanger v. Smego, supra,
257 Conn. 61 (allegation of lack of informed consent
regarding surgical resident’s participation in surgery
did not relate back to allegation that defendant physi-
cian and defendant hospital had failed to disclose all
material risks in connection with plaintiff’s surgery,
care and treatment); Keenan v. Yale New Haven Hospi-
tal, 167 Conn. 284, 285–86, 355 A.2d 253 (1974) (allega-
tion 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 Connecti-
cut, 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 plead-
ings 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. 802.
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,9 the proposed new or
changed allegation of negligence must fall within the
scope of the original cause of action, which is the trans-
action or occurrence underpinning the plaintiff’s 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 determina-
tion, 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 trans-
action or occurrence between the parties that was iden-
tified 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.10
If new allegations state a set of facts that contradict
the original cause of action, which is the transaction
or occurrence underpinning the plaintiff’s 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 contra-
diction must not end the trial court’s 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 plaintiff’s] skull;
and/or
‘‘E. [He] failed to make sure the locking device con-
necting the skull clamp to the [operating room] table
was safely and securely applied; and/or
‘‘F. [He] failed to make sure that [the plaintiff’s] posi-
tioning [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 plaintiff’s] spinal cord at [C3
through C5] is ordinarily not seen in the course of sur-
gery at [C6 through C7] in the absence of someone’s neg-
ligence.11
‘‘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 com-
plaint:
‘‘A. [Kruger] failed to plan a safe and effective opera-
tion, and/or
‘‘B. [He] failed to perform a safe and effective opera-
tion, 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 com-
plete and accurate account of what happened during
[the plaintiff’s] 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 origi-
nal complaint.
In construing the original complaint, we hold that
the plaintiff’s cause of action is that Kruger negligently
performed spinal surgery on the plaintiff, resulting in
the plaintiff’s 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 allega-
tions that Kruger failed to properly perform the sur-
gery.12 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
Kruger’s control when he performed the surgery on the
plaintiff’s spine. At the very least, this additional count
put the defendants on notice that the plaintiff’s claim
was not limited to the skull clamp allegations. Reading
the two counts together, the transaction or occurrence
that formed the basis of the plaintiff’s claim was that
Kruger improperly used medical instruments during the
plaintiff’s spinal surgery, resulting in his injury. There-
fore, the plaintiff adequately put the defendants on
notice that his claim related to Kruger’s conduct during
the surgery and, more specifically, his use of medical
instruments during the surgery.
The plaintiff’s amended complaint added new allega-
tions 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 medi-
cal 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 plaintiff’s spinal surgery in the
operating room by Kruger, and this negligence caused
the plaintiff to suffer quadriparesis.13
For the foregoing reasons, we conclude that the
Appellate Court properly held that the amended com-
plaint related back to the original complaint and that
the trial court’s denial of the plaintiff’s 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.
1
We granted the petition by the defendants, Greater Hartford Orthopedic
Group, P.C., and David Kruger, for certification on the following questions:
‘‘1. Did the Appellate Court properly determine that the trial court misapplied
the relation back doctrine when it refused to allow the plaintiff [Donald
Briere] to amend the complaint?’’ and ‘‘2. Did the Appellate Court properly
determine that the trial court did not abuse its discretion when it sustained
the plaintiff’s objection to the defendants’ request to revise?’’ Briere v.
Greater Hartford Orthopedic Group, P.C., 319 Conn. 950, 950–51, 125 A.3d
529 (2015).
2
The complaint was brought by Donald Briere and his wife, Nancy Briere.
Nancy Briere’s claims are for loss of consortium, which are derivative of
Donald Briere’s negligence claims. Therefore, for purposes of clarity and
convenience, references herein to the plaintiff are to Donald Briere indi-
vidually.
3
General Statutes § 52-584 provides in relevant part: ‘‘No action to recover
damages for injury to the person . . . caused by negligence . . . 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 discovered . . . except that
no such action may be brought more than three years from the date of the
act or omission complained of . . . .’’
4
Count one alleged negligence against Kruger. Count two alleged negli-
gence under a theory of vicarious liability against the practice group. Count
three alleged negligence against both defendants pursuant to a claim of res
ipsa locquitor. Counts four and five alleged loss of consortium on behalf of
Nancy Briere against each of the defendants, respectively.
5
The plaintiff’s complaint was accompanied by a certificate of good faith
and a supporting letter from a similar health-care provider in which a board
certified orthopedic surgeon opined that Kruger had been negligent in failing
to properly secure the plaintiff’s head in the skull clamp, causing it to move
during surgery, and resulting in his injuries. The defendants assert that the
lack of any allegations concerning the retractor blade in the similar health-
care provider letter supports a conclusion that the original cause of action
was limited to the skull clamp. We are not persuaded. The purpose of
requiring a letter by a similar health-care provider is to help eliminate some
of the more questionable and meritless claims of medical malpractice. Wilcox
v. Schwartz, 303 Conn. 630, 641, 37 A.3d 133 (2012). That purpose is served
when the similar health-care provider is able to opine that the defendant
breached the applicable standard of care and state the factual basis upon
which the author believes that standard of care was breached; it does not
require a detailed recitation of the method in which the breach occurred.
Id., 643–44; id., 644 (‘‘[This] interpretation of [General Statutes] § 52-190a [a]
. . . represents an appropriate balance between the two primary competing
considerations identified by the legislature, namely, the need for enough
specificity to support a good faith belief of the existence of medical negli-
gence, on the one hand, and the fact that, at the time the written opinion
is issued, the plaintiff will not yet have had the opportunity to engage in
any formal discovery into the alleged malpractice, on the other. Although,
in some cases, a more comprehensive explanation of the defendant’s alleged
negligence will be possible, a blanket requirement mandating a more onerous
or stringent standard would serve to deter not only frivolous lawsuits but
some meritorious ones, as well, a result that the legislature did not intend
to achieve.’’). Therefore, a plaintiff should not be barred from amending a
complaint to add specific allegations regarding how the defendant breached
the standard of care merely because the similar health-care provider did
not discuss those facts in his opinion letter.
6
The defendants’ motion for summary judgment was initially granted in
part and denied in part by the court, Domnarski, J., whose denial was based
in part on the deposition testimony of Macon. Due to the conflict between
Judge Aurigemma’s granting of the motion in limine to exclude Macon’s
testimony and Judge Domnarski’s denial of the motion for summary judg-
ment based upon the deposition of Macon, the defendants moved for the
court to vacate the summary judgment ruling and to refer the matter to
Judge Aurigemma for reargument. After discussion on the record with Judge
Aurigemma, the plaintiff reluctantly stipulated to having Judge Domnarski
vacate his ruling, and the motion for summary judgment was transferred
to Judge Aurigemma.
7
The defendants also challenge the ruling of Judge Holzberg sustaining
the plaintiff’s objection to their request to revise seeking more specific
factual allegations of how Kruger negligently planned and performed the
surgery. If the defendants were to prevail on this claim, the remedy would
be to reverse the trial court’s denial of their request to revise and remand
the case to the trial court to allow the plaintiff to revise the complaint.
Because we conclude that Judge Aurigemma should have allowed the plain-
tiff to amend his complaint, we do not reach the issue of whether the trial
court should have required the plaintiff to do so at an earlier time.
8
We acknowledge, as noted by Justice Robinson in his concurrence, that
this court has previously stated that the standard of review is not settled.
We disagree, however, with the approach advanced by Justice Robinson
insofar as it blends the standard of review for whether an amended pleading
relates back to an earlier pleading with the standard of review for whether
to allow a party to amend the pleading. If the statute of limitations has
expired and an amended pleading does not relate back to the earlier pleading,
then the trial court has no discretion to allow an amendment. While the
determination of whether a pleading relates back involves the issue of fair
notice and may require a trial court to find, among other things, whether
the original and amended complaint require similar evidence and experts,
such determination is grounded in interpretation of the pleadings and is not
the type of determination that a trial court is in a better position to make
than an appellate court. Therefore, whether a pleading relates back is subject
to plenary review. Where an amended pleading does relate back to an earlier
pleading, the trial court may look to other factors, including the length of
the delay, prejudice to the opposing party, and any negligence on the part
of the party offering the amendment, to decide whether to allow the amend-
ment. We agree with Justice Robinson that once the trial court finds that
a pleading relates back, its decision whether to allow an amendment is
subject to an abuse of discretion standard of review. In the present case,
however, because the trial court denied the plaintiff’s request for leave to
file his amended complaint on the basis that the amended complaint did
not relate back to the original complaint, we engage in plenary review.
9
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 over-
come 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 plaintiff’s
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 defendant’s intentional conceal-
ment of his wrongful conduct tolls the statute of limitations. See General
Statutes § 52-595.
10
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 conclu-
sory allegations without any factual support in his complaint.
11
The references herein to C3, C4, C5, C6 and C7 are to the sections of
vertebrae located on one’s spinal cord.
12
We note that the defendants requested that the plaintiff revise the origi-
nal 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.
13
In reaching this conclusion, we have considered whether the new retrac-
tor blade allegations would have required different evidence or experts than
the original allegations. We note that the plaintiff’s 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.